WPS 







ICENSE HAND BOOK 



THE AI 


MR. 



BOOK NO. 



































\ 










BRIEFS, DECISIONS AND OPINIONS 

»\ 


Pertaining to the Collection of License Taxes 
by States and Municipalities from Sales¬ 
men and Deliverymen engaged 
in soliciting orders for 
future delivery 


1792 


I 


Copyright 1914 by 

THE ALUMINUM COOKING UTENSIL COMPANY 
NEW KENSINGTON, PA. 


JUL 2! 1914 

© Cl, A 3 7 6 7 3 2 

Uj}{ 


CHAPTER I. 

Salesmen in the employ of The Aluminum Cooking Utensil Com¬ 
pany selling “WEAR-EVER” aluminum utensils in strict accordance 
with the plan outlined in the Company’s BOOK OF INSTRUCTIONS 
TO SALESMEN are not required to pay any tax or license for the 
privilege of soliciting orders or of making deliveries to customers. 
This protection is afforded under 

TWO LINES OF DEFENSE. 

First and most important is that the Constitution of the United 
States, Article 1, Paragraph 8, provides: “That Congress shall have 
power *** to regulate commerce with foreign nations and among the 
several States and of the Indian tribes.” And by a long line of decisions 
of the United States Supreme Court as briefed in the following pages, 
the imposition of a license or tax within one state upon the selling of 
the products of another state is contrary to both the letter and spirit 
of the Constitution, provided the goods are outside of the state at the 
time the contract of sale is made. There are also numerous decisions 
to the effect that the right to sell takes with it the right to deliver the 
goods and collect therefor. 

The only exceptions are in the cases of salesmen working in the 
states of Pennsylvania, Illinois and Oregon, where the Company main¬ 
tains warehouses from which shipments within the respective states 
are made. In these states, however, decisions of the State Courts as 
briefed in the following pages relieve The Aluminum Cooking Utensil 
Company’s salesmen in most cases. While there is a slight possibility 
in these three states that a man might be held for the payment of a 
license, yet up to the time this book is published no case has been lost 
in trial by any of the Company’s salesmen. 

The second line of defense is that nearly all municipal ordinances 
under which payment of licenses is demanded make some discrimination 
in favor of local residents or merchants and against residents, merchants 
or manufacturers of other localities. The Courts universally hold that 
this basis of classification protecting merchants from competition 
within a limited area and preventing those outside of such area from 
the solicitation of sales within the area without the taking out of a 
license, is unreasonable; and such acts are held to be invalid. 


2 


The Aluminum Cooking Utensil Company. 


METHOD OF OPERATION PURSUED BY 
“WEAR=EVER” SALESMEN. 

Orders are solicited by salesman from individuals, the salesman 
displaying samples and catalogs describing the goods. At intervals the 
salesman places a requisition with the Company for such goods as he 
requires to fill the orders he has secured. Subsequent to the taking 
of the orders the Company ships the goods to the salesman, who then 
delivers the material to the customers and collects the price thereof. 
The salesman is paid a commission for his services, and at the time 
the goods are shipped the Company mails to the salesman a statement 
showing the material shipped, the amount to be collected for all the 
goods thereon, and the amount due the Company after the salesman’s 
commission has been deducted. The salesman furnishes the Company 
with security for the goods requisitioned by him to fill orders. The 
security is in the form of a personal bond furnished by a third party, 
or by a cash deposit made at the time the requisition is placed to cover 
in full or in part the Company’s share of the collections. In event 
part only of the Company’s share of the collections is deposited as 
security, the Company ships the goods C. O. D. for the remainder, 
which amount the salesman deposits before securing the goods by 
paying the amount of the C. O. D. The text of the contract existing 
between the salesman and the Company is fully given on page 5. 
The goods are shipped to the salesman in bulk for the sake of economy 
and convenience in accounting and general handling of the transaction. 
Each requisition from the salesman is accompanied by the individual 
orders from his customers. 

The object of marketing “WEAR-EVER” goods in this manner 
is to encourage and stimulate the sale of aluminum wares by reason 
of the personal demonstration of the advantages of such goods that 
is made by the salesman when interviewing his customers. The policy 
is more fully discussed in Chapter XLII, entitled “Why We Employ 
Advertising Salesmen.” 

WHY LICENSES ARE DEMANDED. 

Many cities and towns have passed ordinances which prohibit the 
solicitation of sales by salesmen calling personally upon the residents 
of the town (ordinarily called canvassing) or of the delivery of goods 
sold by such canvassing salesmen, unless a license has been paid. The 
fact that such ordinances are invalid and unconstitutional is becoming 
so well understood that municipal authorities seldom attempt to 




Briefs, Decisions and Opinions. 


3 


enforce them, but occasionally municipal officials will attempt to 
collect the license, even going so far as to arrest the salesman in event 
payment is refused. The “WEAR-EVER” salesman is instructed 
that in event the officials of any town in which he is working require 
the payment of a license he is to respectfully explain the manner in 
which he is operating and his general line of defense as described above. 
He makes it clear that he is not a peddler, that he does not carry a 
stock of goods within the state, that he delivers no goods except such 
as are outside of the state at the time the orders are taken, that he is 
merely an agent in the employ of The Aluminum Cooking Utensil 
Company, which does not have a stock of goods in the state where 
the sales are made, and that his work falls within Interstate Commerce 
as it has been defined by the Courts. 


IN EVENT OF ARREST. 

Should a “WEAR-EVER” salesman be arrested for conducting 
his work without taking out a license, he must, of course, employ legal 
counsel to assist him. This book is intended as a hand-book or guide 
for the attorney in handling his case. Release from arrest must be 
immediately sought under habeas corpus proceedings as that is the 
quickest way of settling the question. When a Federal District Judge 
is within reach the habeas corpus petition should be presented to him 
rather than to a State Judge. Ex parte Green 114 Federal 959, in re 
Tinsman 95 Federal 648 ,* and a number of other cases cited in the 
latter decision furnish ample authority for taking a matter of this 
kind before a Federal Judge on habeas corpus proceedings. 


BROKEN PACKAGES. 

. In some cases municipal authorities practically admitting that the 
transaction is Interstate Commerce will base their contentions entirely 
upon the fact that the goods are shipped in bulk, contending that the 
individual order for each customer must be separately packed and 
tagged with his or her name to make the transaction Interstate Com¬ 
merce. The point is covered in a number of cases cited in the brief 
of our general counsel, Messrs. Gordon & Smith of Pittsburgh (page 9), 
but particularly in Rearick vs. Pennsylvania and Caldwell vs. North 
Carolina. 


See page 33 for decision in this case. 





4 


The Aluminum Cooking Utensil Company. 


ATTORNEYS GENERAL. 

Recognizing the fact that occasionally municipal officials will 
unadvisedly attempt to enforce against “WEAR-EVER” salesmen, 
ordinances which do not fit the case, the Attorneys General of several 
states in their effort to prevent the clogging of the Courts of their 
states with avoidable and unnecessary litigation have expressed 
opinions on the subject that are quoted herein under the chapters 
dealing with their respective states. These officials have felt justified 
in expressing such opinions because the principle has been so often 
passed upon by the Courts of the state that in giving an opinion they 
are really only calling attention to court decisions that are matters of 
public record. 


INTRA-STATE SHIPMENTS. 

In the states of Pennsylvania, Illinois and Oregon the defense of 
interstate commerce cannot be maintained, as The Aluminum Cooking 
Utensil Company maintains warehouses and shipping depots in each 
of these states, from which sources shipments to points within the 
respective states are made. However, there are other lines of defense 
in each of these states, which will in nearly every case clear the “ WEAR- 
EVER” salesman from the necessity of paying a license. The line of 
defense for each of these states is separately covered in the proper 
respective chapters following. 

BRIEFS, DECISIONS AND OPINIONS. 

In preparing his defense any attorney retained by a “WEAR- 
EVER” salesman, if in any other state than Pennsylvania, Illinois or 
Oregon, should first carefully read the brief of Messrs. Gordon & 
Smith immediately following, and also the decisions and authorities 
listed in the separate chapters under the various states. 




Briefs, Decisions and Opinions 


5 


SALESMEN’S CONTRACT. 

THE ALUMINUM COOKING UTENSIL COMPANY, a Corporation of the State of 
Pennsylvania, having an office and place of business in the Borough of New Kensington, hereinafter 

called the Company, and____ 


Town 

hereinafter called the Salesman, in consideration of the mutual agreements herein contained, have 

made and entered into the following Contract this_day of_ 

_ A. D. 191_ 

FIRST: The Company hereby agrees to appoint and does appoint the Salesman as its agent 
for the canvass and sale of its goods in the following territory, to-wit:____ 


(Territory not to be filled in by Salesman) 

The Company further agrees not to appoint another agent to canvass in the described territory 
while all the conditions of this contract are fulfilled by the Salesman. 

SECOND: The Salesman accepts said appointment and agrees to deposit $5.00 with the 
Company when this contract is signed. The said sum of $5.00 is to be placed to his credit and to be 
applied on the purchase price of his sample outfit. In case the Salesman fails to order his sample 
outfit, or begin work on the date specified, said $5.00 will be forfeited and will remain the property 
of the Company as liquidated damages for the breach of this contract. 

The Salesman further agrees to order his sample outfit not later than...191_, 

and to send cash with the order for the full net amount thereof, less the $5.00 already deposited, referred 
to above, or to insure payment of the balance by furnishing the Company the security described in 
the Eighth Article below, it being understood that in this latter case payment of this balance is to be 
made from the proceeds of the first delivery. 

THIRD: The Salesman agrees to begin his canvass on or before_191_ 

and agrees that his failure to do so shall forfeit his right to the territory; but the Company may for 
cause grant the Salesman an extension of time, which extension shall not be effective unless given in 
writing. 

FOURTH: The Company agrees to send with the sample outfit a book entitled ‘ ‘Instructions 
to ‘Wear-Ever’ Salesmen,” which is to remain the property of the Company and which the Salesman 
agrees to return without demand to the Company on or before the termination of this contract. 

FIFTH: The Company agrees to furnish the Salesman with a catalogue and price list of its 
goods, and in so far as practicable to ship with reasonable promptness all goods included in requisitions 
sent by him, unless the Salesman is authorized to take orders for salesman’s specialties only, in which 
event no other article will be shipped on requisitions sent in by him. 

SIXTH: The Salesman agrees diligently and with his utmost ability to solicit orders for 
“Wear-Ever” Aluminum Cooking Utensils in the specified territory, and to keep faithfully and 
accurately a complete record of all receipts and expenditures in a book to be supplied by the Company 
and known as “Salesman’s Account and Expense Book.” 

SEVENTH: The Salesman agrees to send in two reports each week, one to the Division 
Supervisor of the Company, and the other to the Company, upon forms furnished by the Company, 
giving the number of hours worked each day, the amount of each day’s orders, and the sum total of 
all orders at list prices taken during the week; it being understood that failure to report each week 
gives the Company the right to cancel this Contract. 

EIGHTH: The Salesman agrees to be personally responsible for the payment for all goods 
included in requisitions sent to the Company for goods required to fill orders solicited for the Com¬ 
pany by him, and to insure payment for such goods by giving a security satisfactory and acceptable 
to the Company either in accordance with a form furnished by the Company, known as a Letter of 
Credit, or by means of a bond issued by a Surety Company; or in case such security is not given, the 
Salesman agrees to deposit cash with each requisition to the amount of the Company’s share of the 
proceeds from the delivery of the goods included in the requisition. 

The Salesman further agrees, when goods are shipped under security as above provided, to 
remit promptly to the Company its share of the proceeds from the first collections on account of each 
delivery, and agrees that no delivery will be delayed longer than thirty days from the date of shipment 
of the goods by the Company, unless an extension of time has been asked for by the Salesman and 
granted by the Company. 

NINTH: The Company agrees to allow the Salesman, upon all sales made by him, a commis¬ 
sion of 40% on its published price list and the Salesman agrees to remit to the Company the net 














6 


The Aluminum Cooking Utensil Company 


amount after deducting said commission. The Salesman also agrees not to use the Company’s money 
for personal use of any kind, but his commission only for such purpose. The commission herein 
stated is allowable only upon requistions for goods submitted during the life of the contract, and only 
upon such goods as the Salesman has collected the selling price of. 

TENTH: The Salesman agrees to pay all transportation charges on goods included in requisi¬ 
tions sent in by him and not to requisition any goods except those for which actual orders have been 
received. 

ELEVENTH: The Company agrees, in case the Salesman at the end of his canvass has goods 
of the Company which have been ordered by purchasers, but which the purchasers have failed or 
refused to accept, amounting in the aggregate to not more than $20.00, that the same may be returned 
by him to the Company and that the Company thereupon will relieve the Salesman from responsibility 
for the payment for same by the purchasers, privided (a) that the goods are in good condition, (b) 
that the Company is notified of the amount thereof before shipment is made, and (c) that the return 
transportation charges are paid by the Salesman; it being understood that the sample outfit is not 
included in this provision. 

TWELFTH: The Salesman has no power or authority to incur or contract any liability of 
any kind for or in the name of the Company or for which the Company could or might be liable to 
others. 

THIRTEENTH: This Contract shall terminate.191. Extension 

of time, however, may be obtained by special arrangement with the Company, within, but not before, 
the ten days preceding said date of termination. 

FOURTEENTH: The Company reserves the right at any time to require the Salesman to 
confine all of his sales to the salesman’s specialties only. 

FIFTEENTH: The salesman understands that if he fails to make sales averaging $. 

..a week at list prices, the Company will consider such failure a sufficient ground for term¬ 
inating this Contract. 

IN WITNESS WHEREOF: The Company has caused this contract to be signed by an 
authorized representative and the Salesman has affixed his signature the day and year first above 
written. 

(Salesman Sign Here) 

THE ALUMINUM COOKING UTENSIL CO., 


( Town.. By. 

Present Address •< St. & No_ 

(College. 

Home Address f Town..._. 

(St. & No.. 


t 
















Briefs, Decisions and Opinions 


7 


No. 


Accepted 


LETTER OF CREDIT. 


To THE ALUMINUM COOKING UTENSIL CO.. 

New Kensington, Pa. 


Gentlemen: 


.191 


In consideration of your taking into, or continuing in, your employ. 

(Salesman’s Name here) 


(Salesman’s Address here) 

to be employed from time to time in such portions of the United States as you shall deem proper, I 
hereby agree to pay you forthwith for all goods ordered of you from time to time and not paid for 
by him when due. My liability not to exceed 




Yours truly, 


mame'of WITNESS here)' 


.(Seal) 

(Name of SURETY here) 


(Address of WITNESS here) 


(Address of SURETY here) 


REFERENCES: 

Name and address of Bank where Surety deals 


(Name) (Address) 

Name and address of two business or professional men who are acquainted with Surety 


(Name) 


(Address) 


(Name) 


(Address) 


Write Names and Addresses Plainly. 




















CHAPTER II. 


Brief of Authorities Exempting Salesmen and 
Delivery Men Engaged in Interstate 
Commerce from License Taxes Imposed 
by States and Municipalities. 


Submitted April 28, 1913 
By 

GORDON & SMITH 

Frick Building Annex, Pittsburgh, Pa. 
General Counsel for 

THE ALUMINUM COOKING UTENSIL CO. 


Briefs, Decisions and Opinions. 


9 


BRIEF OF AUTHORITIES EXEMPTING SALESMEN AND 
DELIVERY MEN ENGAGED IN INTERSTATE COMMERCE 
FROM LICENSE TAXES IMPOSED BY STATES AND 
MUNICIPALITIES. 

Brown vs. State of Maryland, 12 Wheat. 419 (1827).—An act of 
the legislature of Maryland provided “that all importers of foreign 
articles ******* or of *******distilled, spirituous liquors, &c. f and 
other persons selling the same by wholesale, ********* shall, before 
they are authorized to sell, take out a license, ********* f or which 
they shall pay fifty dollars.” 

Brown and others were indicted for having imported and sold 
foreign dry goods without having a license to do so. They demurred 
to the indictment and a judgment was rendered against them which 
was affirmed in the state Court of Appeals but reversed by the Uiiited 
States Supreme Court. The latter court held the act of the Maryland 
legislature void as repugnant to the provision of the Constitution of 
the United States, which declares that Congress shall have power “to 
regulate commerce with foreign nations, and among the several states, 
and with the Indian tribes.” Chief Justice Marshall in delivering the 
opinion of the court gave an admirable exposition of the purpose and 
meaning of this provision of the Federal Constitution (pp. 446-449): 

“What, then, is the just extent of a power to regulate 
commerce with foreign nations, and among the several 
states? This question was considered in the case of 
Gibbins v. Ogden , 9 Wheat. 1, in which it was declared to 
be complete in itself, and to acknowledge no limitations 
other than are prescribed by the constitution. The 
power is co-extensive with the subject on which it acts, 
and cannot be stopped at the external boundry of a state, 
but must enter its interior. We deem it unnecessary now 
to reason in support of these propositions. Their truth is 
proved by facts continually before our eyes, and was, we 
think, demonstrated, if they could require demonstration, 
in the case already mentioned. 

If this power reaches the interior of a state, and may 
be there exercised, it must be capable of authorizing the 
sale of those articles which it introduces. Commerce is 
intercourse—one of its most ordinary ingredients is 
traffic. It is inconceivable, that the power to authorize 
this traffic, when given in the most comprehensive terms, 
with the intent that its efficacy should be complete, should 
cease at the point when its continuance is indispensable 
to its value. To what purpose should the power to allow 





10 


The Aluminum Cooking Utensil Company. 


importation be given, unaccompanied with the power to 
authorize a sale of the thing imported? Sale is the object 
of importation, and is an essential ingredient of that inter¬ 
course, of which importation constitutes a part. It is as 
essential an ingredient, as indispensable to the existence 
of the entire thing, then, as importation itself. It must 
be considered as a component part of the power to regulate 
commerce. Congress has a right, not only to authorize 
importation, hut to authorize the importer to sell. If this 
be admitted, and we think it cannot be denied, what can 
be the meaning of an act of congress, which authorizes 
importation, and offers the privilege for sale, at a fixed 
price, to every person who chooses to become a purchaser? 
How is it to be construed, if an intent to deal honestly 
and fairly—an intent as wise as it is moral—is to enter 
into the construction? What can be the use of the con¬ 
tract, what does the importer purchase, if he does not 
purchase the privilege to sell? What would be the 
language of a foreign government, which should be in¬ 
formed, that its merchants, after importing according to 
law, were forbidden to sell the merchandise imported? 
What answer would the United States give to the com¬ 
plaints and just reproaches to which such an extraordinary 
circumstance would expose them? No apology could be 
received, or even offered. Such a state of things would 
break up commerce. It will not meet this argument, to 
say, that this state of things will never be produced; that 
the good sense of the states is a sufficient security against 
it. The constitution has not confided this subject to that 
good sense. It is placed elsewhere. The question is, 
where does the power reside? not, how far will it be 
probably abused? The power claimed by the state is, 
in its nature, in conflict with that given to congress; and 
the greater or less extent in which it may be exercised, 
does not enter into the inquiry concerning its existence. 
We think, then, that if the power to authorize a sale, 
exists in congress, the conclusion that the right to sell is 
connected with the law permitting importation, as an 
inseparable incident, is inevitable. 

If the principles we have started be correct, the 
result to which they conduct us cannot be mistaken. 
Any penalty inflicted on the importer, for selling the article, 

% in his character of importer, must he in opposition to the 
' act of congress which authorizes importation. Any charge 
on the. introduction and incorporation of the articles into 
and with the mass of property in the country, must be 
hostile to the power given to congress to regulate com¬ 
merce, since an essential part of the regulation, and prin¬ 
cipal object of it, is, to prescribe the regular means for 
accomplishing that introduction and incorporation. The 
distinction between a tax on the thing imported and on 
the person of the importer, can have no influence on this 




Briefs, Decisions and Opinions. 


11 


part of the subject. It is too obvious for controversy, 
that they interfere equally with the power to regulate 
commerce. 

It has been contended, that this construction of the 
power to regulate commerce, as was contended in con¬ 
struing the prohibition to lay duties on imports, would 
abridge the acknowledged power of a state to tax its own 
citizens, or their property within its territory. We admit 
this power to he sacred; hut cannot admit, that it may he used 
so as to obstruct the free course of a power given to congress. 
We cannot admit, that it may he so used as to obstruct or 
defeat the power to regulate commerce. It has been ob¬ 
served, that the powers remaining with the states may 
be so exercised as to come in conflict with those vested 
in congress. When this happens, that which is not 
supreme must yield to that which is supreme. This 
great and universal truth is inseparable from the nature 
of things, and the constitution has applied it to the often 
interfering powers of the general and state governments, 
as a vital principle of perpetual operation. It results, 
necessarily, from this principle, that the taxing power of 
the states must have some limits. It cannot reach and 
restrain the action of the national government, within its 
proper sphere. It cannot reach the administration of 
justice in the courts of the Union, or the collection of the 
taxes of the United States, or restrain the operation of any 
law which congress may constitutionally pass. It cannot 
interfere with any regulation of commerce. If the states 
may tax all persons and property found on their territory, 
what shall restrain them from taxing goods in their transit 
through the states from one port to another, for the purpose 
of re-exportation? The laws of trade authorize this oper¬ 
ation, and general convenience requires it. Or what 
should restrain a state from taxing any article passing 
through it, from one state to another, for the purpose of 
traffic? or from taxing the transportation of articles pass¬ 
ing from the state itself to another, for commercial pur¬ 
poses? These cases are all within the sovereign power 
of taxation, but would obviously derange the measures 
of congress to regulate commerce, and affect materially 
the purpose for which that power was given. We deem 
it unnecessary to press this argument further, or to give 
additional illustration of it, because the subject was taken 
up, and considered with great attention in McCulloch v. 
State of Maryland , 4 Wheat. 316, the decision in which 
case is, we think, entirely applicable to this. 

It may he proper to add, that we suppose the principles 
laid down in this case, to apply equally to importations 
from a sister state. We do not mean to give any opinion 
on a tax discriminating between foreign and domestic 
articles. 




12 


The Aluminum Cooking Utensil Company. 


Robbins vs. Shelby County Taxing District, 120 U. S. 489 (1887).— 
This is a leading case. Robbins solicited trade in Tennessee by the 
use of samples for a firm in Ohio selling writing materials. He was 
fined for “drumming” without a license under a statute of Tennessee 
providing that “All drummers, and all persons not having a regular 
licensed house of business in the Taxing District, offering for sale or 
selling goods, wares or merchandise therein, by sample, shall be required 
to pay to the county trustee the sum of $10 per week, or $25 per month, 
for such privilege, and no license shall be issued for a longer period 
than three months.” 

The Supreme Court of Tennessee affirmed the judgment against 
Robbins, but on writ of error the United States Supreme Court reversed 
the judgment and discharged Robbins. The opinion of the court, 
which is a masterly treatment of this entire subject, was delivered by 
Mr. Justice Bradley. The gist of it is embodied in the following 
sentences (p. 497): 

“When goods are sent from one state to another for 
sale, or, in consequence of a sale, they become part of its 
general property, and amendable to its laws; provided that 
no discrimination be made against them as goods from 
another state, and that they be not taxed by reason of 
being brought from another state, but only taxed in the 
usual way as other goods are. ************************ 

'But to tax the sale of such goods, or the offer to sell them, 
before they are brought into the state, is a very different 
thing, and seems to us clearly a tax on interstate commerce 
itself ********************************************* 

‘Interstate commerce cannot be taxed at all, even though 
the same amount of tax should be laid on domestic commerce, 
or that which is carried on solely within the state.********* 

1 The negotiation of sales of goods which are in another 
state, for the purpose of introducing them into the state in 
which the negotiation is made, is interstate commerce .’ ” 


Corson vs. Maryland, 120 U. S. 502 (1887).—Corson was indicted 
for selling by sample in Baltimore, without a license, goods for a New 
York firm to be shipped from New York directly to the purchaser, in 
violation of a Maryland Statute providing that “No person or corpor¬ 
ation other than the grower, maker or manufacturer shall barter or 
sell, or otherwise dispose of, ************** any goo ds, chattels, wares 
or merchandise within this state without first obtaining a license.” 




Briefs, Decisions and Opinions. 


13 


Corson demurred to the indictment, but it was sustained by the 
court of original jurisdiction and the Court of Appeals of Maryland 
on writ of error. The judgment was reversed and Corson discharged 
by the United States Supreme Court, which held that the statute, like 
that in the last case, was unconstitutional as applied to Corson since 
he was engaged in interstate commerce. 

Asher vs. Texas , 128 U. S. 129 (1888).—An act of the legislature 
of Texas provided that there should be collected “from every com¬ 
mercial traveller, drummer, salesman, or solicitor of trade, by sample 
or otherwise, an annual occupation tax of thirty-five dollars.” Asher 
was a drummer engaged in Houston in soliciting trade by the use of 
samples for a Louisiana house, which manufactured rubber stamps. 
He was arrested and fined for pursuing the occupation of drummer 
without a license. He applied to a state court for a writ of Habeas 
corpus. Judgment was given against him by that court but on writ 
of error the United States Supreme Court reversed the judgment and 
remanded the cause with instructions to discharge the prisoner. 

Stoutenburgh vs. Hennick, 129 U. S. 141 (1889).—Hennick was con¬ 
victed in the Police Court of the District of Columbia of engaging 
within the District in the business of offering for sale, as agent of a 
Baltimore firm, certain goods without having obtained a license to do 
so, contrary to an act of the Legislative Assembly of the District, and 
on defaulting in payment of a fine and the license was committed to 
the workhouse. The act in question was a license act and provided 
that “Commercial agents shall pay two hundred dollars annually. 
Every person whose business it is, as agent, to offer for sale goods, 
wares or merchandise by sample, catalogue or otherwise, shall be 
regarded as a commercial agent.” On writ of error the United States 
Supreme Court affirmed the judgment saying by Mr. Chief Justice 
Fuller (pp. 148-149): 

“The conclusions announced in the case of Robbins 
were that the power granted to Congress to regulate 
commerce is necessarily exclusive whenever the subjects 
of it are national or admit only of one uniform system or 
plan of regulation throughout the country, and in such 
case the failure of Congress to make express regulations 
is equivalent to indicting its will that the subject shall 
be left free; that in the matter of interstate commerce 
the United States are but one country, and are and must 
be subject to one system of regulations, and not to a 
multitude of systems; and that a State statute requiring 
persons soliciting the sale of goods on behalf of individuals 




14 


The Aluminum Cooking Utensil Company. 


or firms doing business in another State to pay license fees 
for permission to do so, is, in the absence of congressional 
action a regulation of commerce in violation of the Consti¬ 
tution ******************************************** 

In our judgment Congress, for the reasons given 
could not have delegated the power to enact the 3d clause 
of the 21st section of the act of assembly, construed to 
include business agents such as Hennick. 

In re Spain, 47 Fed. 208 (C. C., E. D. N. C.—1891). Spain was 
employed by citizens of West Virginia, manufacturers of household 
goods, to sell their goods on the installment plan. The method was 
to carry samples from door to door and induce the purchaser to order 
direct from the manufacturers in West Virginia. The articles so 
ordered were consigned in bulk to Spain to be delivered by him. He 
opened the boxes and delivered the articles and on delivery the pur¬ 
chaser signed another contract with the manufacturers for future pay¬ 
ments. Spain was arrested in North Carolina for peddling without a 
license in violation of a statute of that state providing that “Every 
person, a citizen of the United States, authorized to do business in 
this state, who, as principal or agent, peddles ****** goods, wares or 
merchandise, shall pay a license tax.” He applied for a writ of habeas 
corpus to the Federal Court which directed that he be discharged from 
custody. In making the order Judge Bond said (pp. 210, 210-211): 


“We may conclude then, safely, that these petition¬ 
ers, when engaged in showing the samples of goods manu¬ 
factured by their principals in West Virginia, were 
engaged in interstate commerce, and that, whether or 
not they came within North Carolina’s statutory defi¬ 
nition of peddlers, they could not be taxed by that state. 
So far the facts in this case coincide with those in Robbins 
v. Shelby County Taxing Dist. There is a fact, however, 
here which it is argued distinguishes it from that case. 
It is admitted that, while these petitioners—“ drummers,” 
as they are styled in Shelby County Taxing District 
Case—were engaged in the sale of goods from the West 
Virginia factory, which were ordered by the purchaser 
directly from that state, the whole of the articles sold, 
comprising every variety of small household stuff, was 
placed in a box or boxes, consigned in bulk to petitioners 
for distribution, and that, when the box containing them 
was opened, the property became intermingled with the 
property of the state, and was taxable, and the peddling 
of it liable to the tax prescribed. We are of opinion that 
under the decisions of the supreme court this property 
did not become taxable in North Carolina until it reached 







Briefs, Decisions and Opinions. 


15 


the purchaser. It is idle to say, as the supreme court does 
in the case quoted, that a non-resident may send drum¬ 
mers or persons to solicit sales in a sister state, but that 
the state may tax him for making delivery of the goods 
sold ********************************************** 

The right to sell implies the obligation and right to 
deliver. It is as much interstate commerce to do the one 
as the other.” 

In re Houston , 47 Fed. 539 (C. C., W. D. Mo.—1891). Houston 
and Gerye were imprisoned under proceedings instituted in a justice’s 
court in Missouri for peddling wares and merchandise without having 
taken out a peddler’s license, and petitioned the Federal Court for a 
writ of habeas corpus. At the time of their arrest they were acting 
as agents for Kansas merchants carrying samples of goods from house 
to house soliciting custom on the installment plan. The first payment 
was made to the solicitor and represented his commission. He then 
sent in an order to the house in Kansas, the firm shipped to him the 
article contracted for, he delivered it to the purchaser, and the remain¬ 
ing payments were collected by a collecting agent of the firm. Gerye 
in one instance offered to sell a sample clock to a lady who declined to 
take it and he then sold it to another lady and delivered it immediately 
on receiving the first payment. The state statute provided: “Who¬ 
ever shall deal in the selling of” certain goods (including clocks) “by 
going from place to place to sell the same, is declared to be a peddler.” 
Judge Philips held that a sporadic, casual sale not in interstate com¬ 
merce did not fix on Gerye the office of a dealer and ordered that the 
petitioners be discharged from custody, saying (p. 540): 

“The right of a non-resident merchant to thus 
employ agents to go beyond the limits of the state in 
which the merchant resides to solicit purchases, by taking 
orders on the house, to be filled, and the goods shipped 
into another state for delivery, without the goods being 
subject to a license tax of the state, or to an occupation 
tax on the solicitor, has been established , beyond further 
controversy , by decisions of the Supreme Court of the 
United States .” 

In re Nichols , 48 Fed. 164 (C. C., W. D. Pa.—1891). Nichols was 
engaged in the business of soliciting orders for the sale of books pub¬ 
lished by a New York publisher, to whom the orders were sent to be filled, 
the books being delivered on terms meeting the publisher’s approval. 
The publisher had a branch office or storeroom in Pittsburgh to which 
he shipped books from time to time from New York, and from which 





16 


The Aluminum Cooking Utensil Company. 


he sent out the books needed to fill orders. Nichols was arrested in 
Titusville, Pa., and sentenced to pay a fine for violating an ordinance 
of that city providing “That all persons canvassing or soliciting within 
said city orders for goods, books ********* Q r merchandise of any 
kind, or persons delivering such articles under orders so obtained or 
solicited, shall be required to procure from the mayor a license to 
transact said business, and shall pay to the said treasurer therefor the 
following,” etc. Nichols applied to the federal court for a writ of 
habeas corpus and was discharged from imprisonment, the city being 
ordered to pay the costs. Judge Reed in making the order said (p. 166): 

“It was argued by the counsel for the city that the 
ordinance in question in this case was a proper police 
regulation for the protection of its citizens, and to add to 
their comfort, ‘by preventing the intrusive domiciliary 
visitations of canvassers and peddlers, who go from house 
to house in relentless personal pursuit of purchasers.’ 

But, conceding (what is extremely doubtful, if, indeed not 
denied by the case of Leisy v. Hardin, 135 U. S. 100, 

10 Sup. Ct. Rep. 681) that a state or municipality may 
regulate the manner in which citizens of other states may 
prosecute their business by selling goods and merchandise 
not hurtful in themselves, still the ordinance does not 
purport to be such a regulation. It is solely for the 
purpose of raising revenue. Any person paying the 
prescribed license fee may, during the period covered by 
his license, freely transact business in the city, even to 
the extent of ‘intrusive domiciliary visits’ to the unfor¬ 
tunate inhabitants.” 

In re Tyerman, 48 Fed. 167 (C. C., W. D. Pa.—1891). The facts 
in this case were similar to those in the case last cited save that Tyerman 
was employed to deliver the books which had been sold by Nichols 
and to collect the price therefor. The books were sent to him from 
the branch office in Pittsburgh. Arrested for violating the Titusville 
ordinance, he also petitioned for a writ of habeas corpus and was dis¬ 
charged. Judge Reed said (p. 167): 

“ There is no difference in principles between the two 
cases, this petitioner being engaged in completing the 
sales made by Mr. Nichols, and therefore engaged in 
interstate commerce.” 

Brennan vs. Titusville, 153 U. S. 289 (1894).—Shephard, a manu¬ 
facturer of pictures and picture frames in Illinois, employed agents on 
salary and commission to solicit orders therefor in other states by 
exhibiting samples from house to house. Brennan solicited orders in 
this way in Titusville, Pa., and forwarded them to Shephard at Chicago 






Briefs, Decisions and Opinions. 


17 


and the goods were shipped by him to the purchasers. Brennan was 
arrested and fined for violating the city ordinance quoted above (see 
In re Nichols, supra), the city sued to recover the fine and recovered 
a judgment which was affirmed by the Supreme Court of Pennsylvania, 
but reversed on writ of error by the United States Supreme Court. 
That court said in a unanimous opinion speaking by Mr. Justice Brewer 
(pp. 297-298, 298-299, 302): 


“The question in this case is whether a manufacturer 
of goods, which are unquestionably legitimate subjects of 
commerce, who carries on his business of manufacturing 
in one State can send an agent into another State to 
solicit orders for the products of his manufactory without 
paying to the latter State a tax for the privilege of thus 
trying to sell his goods. 

‘It is true, in the present case, the tax is imposed only 
for selling to persons other than manufacturers and 
licensed merchants; but if the State can tax for the 
privilege of selling to one class, it can for selling to an¬ 
other, or to all. In either case it is a restriction on the 
right to sell, and a burden on lawful commerce between 
the citizens of two States. *************************** 


‘It is true, also, that the tax imposed is for selling in 
a particular manner, but a regulation as to the manner of 
sale, whether by sample or not, whether by exhibiting 
samples at a store or at a dwelling house is surely a regulation 
of commerce *************************************** 


‘This license, therefore, the failure to take out which 
is the offence complained of, and for which defendant 
was sentenced, is a license for ‘general revenue purposes’ 
within the very declarations of the ordinance. Even if 
those declarations had been the reverse, and the license 
in terms been declared to be exacted as a police regulation, 
that would not conclude this question, for whatever may be 
the reason given to justify, or the power invoked to sustain 
the act of the State, if that act is one which trenches directly 
upon that which is within the exclusive jurisdiction of the 
national government, it cannot be sustained. ************* 


‘It is undoubtedly true that there are many police 
regulations which do affect interstate commerce, but 
which have been and will be sustained as clearly within 
the power of the State; but we think it must be considered, 
in view of a long line of decisions, that it is settled that 
nothing which is a direct burden upon interstate commerce 
can be imposed by the State without the assent of Congress, 
and that the silence of Congress in respect to any matter of 




18 


The Aluminum Cooking Utensil Company. 


interstate commerce is equivalent to a declaration on its 
part that it should he absolutely free. 

‘That this license tax is a direct burden on interstate 
commerce is not open to question.’ ” 

Pabst Brewing Co. v. City of Terre Haute, 98 Fed. 330 (C. C., 
D. Indiana—1899):—Pabst Brewing Company sued in a federal court 
in Indiana for an injunction to restrain the enforcement of an ordinance 
of the City of Terre Haute providing that “Every person ****** or 
corporation ****** maintaining in said city ************ a brewery 
or breweries, depot or depots, or agency or agencies of breweries, shall 
pay to said city the sum of one thousand dollars for each such brewery, 
depot or agency so ********** maintained, which sum of one thousand 
dollars shall be the annual city license fee to be charged to such brew¬ 
eries, depots or agencies.” Pabst Brewing Company alleged that it 
was a Wisconsin corporation and shipped from its manufactory in that 
state to a depot in Terre Haute malt liquors which were kept in the 
depot until removed to be delivered to Indiana customers. The in¬ 
junction was asked for on the ground that the ordinance was in conflict 
with the commerce clause of the Federal Constitution. Judge Baker 
granted the injunction saying (pp. 332-333): 

“The right to transport beer from one state and 
introduce it into another is interstate commerce, the 
regulation of which has been committed by the national 
constitution to the congress, and hence a state law denying 
such right, or substantially interfering with, or hampering 
the same, is in conflict with the constitution of the United 
States. The right to ship beer or other intoxicating 
liquors from one state into another carries with it the 
incidental right in the consignee or receiver of such goods 
to sell the same in the original packages, without regard to 
state legislation .” 

Stockard vs. Morgan, 185 U. S. 27 (1902).—Stockard sought to 
enjoin the collection of a privilege tax upon him as a “merchandise 
broker” under the laws of Tennessee on the theory that these laws 
were void as against him since he was engaged solely in interstate 
commerce. Stockard was a resident of Tennessee, but the represena- 
tive of parties non-resident in Tennessee, for whom he solicited orders 
from jobbers in Chattanooga, which he sent to his non-resident prin¬ 
cipals. If the order was accepted the goods were shipped by the non¬ 
resident principal from another state to the local jobber. Stockard 
had an office in Chattanooga where he kept samples, but he traveled 
around on foot drumming. The chancellor in the court of first instance 
enjoined the collection of the tax, but his judgment was reversed by 




Briefs, Decisions and Opinions. 


19 


the State Supreme Court which dismissed the bill. On writ of error 
the United States Supreme Court reversed the latter judgment saying 
by Mr. Justice Peckham (p. 37): 

“Although it is said in the opinion of the state court 
herein that the thing taxed is the occupation of merchan¬ 
dise brokerage, and not the business of those employing 
the brokers, yet we have seen from the cases already 
cited that when the tax is applied to an individual within 
the State selling the goods of his principal who is a non¬ 
resident of the State, it is in effect a tax upon interstate 
commerce, and that fact is not in anywise altered by 
calling the tax one upon the occupation of the individual 
residing within the State, while acting as the agent of a 
non-resident principal. The tax remains one upon inter¬ 
state commerce, under whatever name it may he designated. 

Although the State has general power to tax indi¬ 
viduals and property within its jurisdiction, yet it has no 
power to tax interstate commerce, even in the person of a 
resident of the State." 

Caldwell vs. North Carolina, 187 U. S. 622 (1903).—An ordinance 
of Greenboro, N. C., provided “That every person engaged in the 
business of selling or delivering picture frames, pictures, photographs 
or likenesses of the human face, in the City of Greensboro, whether 
an order for the same shall have been previously taken or not, unless 
the said business is carried on by the same person in connection with 
some other business for which a license has already been paid to the 
city, shall pay a license tax of ten dollars for each year.” Caldwell, 
employed by the Chicago Portrait Company, an Illinois corporation, 
came to Greensboro to deliver certain pictures and frames sold by 
other employees of the Chicago Portrait Company who had preceded 
him. The pictures and frames were shipped to Greensboro addressed 
to the Chicago Portrait Company, Caldwell took them from the rail¬ 
way, broke the hulk, placed the pictures in proper frames and delivered 
them to the purchasers. Neither the Chicago Portrait Company nor 
any of its employees paid the city any license tax. Caldwell was 
sentenced to pay a fine for violating the ordinance above quoted and 
this judgment was affirmed by the Supreme Court of North Carolina. 
On writ of error the judgment of that court was reversed by the United 
States Supreme Court, which said in a unanimous opinion by Mr. Justice 
Shiras (pp. 632-633): 

“Transactions between manufacturing companies in 
one State, through agents, with citizens of another con- 




20 


The Aluminum Cooking Utensil Company. 


stitute a large part of interstate commerce; and for us to 
hold, with the court below, that the same articles, if sent 
by rail directly to the purchaser, are free from state tax¬ 
ation, but if sent to an agent to deliver, are taxable 
through a license tax upon the agent, would evidently 
take a considerable portion of such traffic out of the salu¬ 
tary protection of the interstate commerce clause of the 
Constitution. 

It cannot escape observation that efforts to control 
commerce of this kind, in the interest of the States where 
the purchasers reside, have been frequently made in the 
form of statutes and municipal ordinances, but that such 
efforts have been heretofore rendered fruitless by the 
supervising action of this court.” 

Norfolk & Western Ry. Co. vs. Sims, 191 U. S. 441 (1903).—A 
statute of North Carolina provided that “Every manufacturer of 
sewing machines, and every person or persons or corporation, engaged 
in the business of selling the same in this State, shall, before selling 
or offering for sale any such machine, pay to the state treasurer a tax 
of $350 and obtain a license.” Mrs. Satterfield, a resident of North 
Carolina, sent an order by mail to Sears, Roebuck & Co. of Chicago, 
for a sewing machine, which was shipped by that company as railroad 
freight under a bill of lading. The bill of lading was sent C. O. D. to 
an express agent in North Carolina, who received the price of the 
machine from Mrs. Satterfield and delivered the bill of lading to her. 
Sims, a tax collector, forbade delivery by the railway company to 
Mrs. Satterfield until the tax of $350 was paid by Sears, Roebuck & Co. 
and levied on the machine for the tax. A state court ordered that the 
machine be sold to pay the tax. This judgment was affirmed by the 
Supreme Court of North Carolina, but reversed by the United States 
Supreme Court, which said by Mr. Justice Brown (pp. 447, 449, 451): 

“That possession shall be retained until payment of 
the price may or may not have been a part of the original 
bargain, but in substance it is a mere method of collection, 
and we have never understood that a license could be 
imposed upon this transaction, except in connection with 
the prior agreement to sell, although in certain cases 
arising under the police power it has beeh held that the 
sale is not complete until delivery, and sometimes not until 
payment. Were it not for the opinion of the Supreme 
Court of North Carolina, we should have said that the 
words ‘ engaged in the business of selling the same within 
the State ’ had reference to the word ‘ selling ’ in its popular 
and ordinary sense, of selling from a stock on hand or 
upon a special order to a manufacturer, and not to a mere 
method of collecting money; but, however, this may be, 




Briefs, Decisions and Opinions. 


21 


it is evident the state courts could not give it a construction 
which would operate as an interference with interstate com¬ 
merce, and that upon this question the opinion of this 

QOtyfl *1$ coTity ! ® c 5 ® : ^ c 5 ^^ cj ^^ c: ^^ € ^ ! 5 ^^ c 5 ^^ c 5 ^ c 5 ^ 65 ^ 5 ® c 5 ^ s ^ s ^ 5 i c 5 ^ e: ® : ^ c: i c 5 i c 5 ^ 5 i c ^ c 5 J e 5 i |: 5 i cs i* 

‘For the past seventy-five years and ever since the 
original case of Brown vs. Maryland, 12 Wheat. 419, we 
have uniformly held that States have no power to tax 
directly or by license upon the importer, goods imported 
from foreign countries or other States, while in their 
original packages, or before they have become commingled 
with the general property of the State and lost their dis¬ 
tinctive character as imports.************************ 

‘The case is one of the most important ever decided 
by this court, and has been adhered to by a uniform 
series of decisions since that time.******************** 

‘While technically the title of the machine may not 
have passed until the price was paid, the sale was actually 
made in Chicago, and the fact that the price was to be 
collected in North Carolina is too slender a thread upon 
which to hang an exception of the transaction from a rule 
which would otherwise declare the tax to be an interference 
with interstate commerce .’ ” 


Rearick vs. Pennsylvania, 203 U. S. 507 (1906).—Rearick was con¬ 
victed for violating an ordinance of the Borough of Sunbury, which 
made it unlawful to solicit orders for sale or delivery at retail, either 
on the streets or by traveling from house to house, of foreign or domestic 
goods, not of the parties’ own manufacture or production, without a 
license, for which a large fee was required. Rearick was agent of an 
Ohio corporation which employed him to solicit in Sunbury retail 
orders to the company for groceries, which the company filled, when 
it had received a large number of them, at its place of business in 
Columbus, putting the objects of the orders in distinct packages identi¬ 
fied by the customer’s name, and forwarding them to Rearick by rail. 
The company kept no book accounts with the customers, looking only 
to Rearick, who delivered the goods to the customers, for cash paid 
to him, which he sent to the corporation. Brooms ordered were 
tagged like the other articles, but were then tied in bundles, wrapped 
conveniently for shipment. Rearick had no license, claiming the 
ordinance to be void as to him under the commerce clause of the 
Federal Constitution. Judgment against him in the Superior Court of 
Pennsylvania from which the Supreme Court of Pennsylvania had dis¬ 
allowed an appeal was reversed by the United States Supreme Court, 
which said by Mr. Justice Holmes (pp. 511, 511-512, 512): 




22 


The Aluminum Cooking Utensil Company. 


“In other words, it was contended that the brooms 
before they were sold had become mingled with, or part 
of, the common mass of goods in the State, and so subject 
to the local law. But the doctrine as to original packages 
primarily concerns the right to sell within the prohibiting 
or taxing State goods coming into it from outside. When 
the goods have been sold before arrival, the limitations 
that still may be found to the power of the State will be 
due, generally, at least, to other reasons, and we shall 
consider whether the limitations may not exist, irrespect¬ 
ive of that doctrine, in some cases where there is no 
executed sale ************************************* 


‘The fair meaning of the agreed fact that the orders 
were given to agents employed to solicit them, is that the 
company offered the goods and that the orders were 
acceptances of offers from the other side. If there were 
the slightest reason to doubt that the contracts were 
made with the company through its authorized agent at 
the moment when the orders were given, which we do not 
perceive that there is, certainly the contrary could not be 
assumed in order to sustain a conviction. It is for the 
prosecution to make out its case. We may mention here 
in parenthesis that of course it does not matter to the 
question before us that the contract was made in Penn¬ 
sylvania ****************************************** 


‘The brooms were specifically appropriated to specific 
contracts, in a practical, if not in a technical, sense. 
Under such circumstances it is plain that, wherever might 
have been the title , the transport of the brooms for the purpose 
of fulfilling the contracts was protected commerce .’ ” 


Dozier vs. Alabama, 218 U. S. 124 (1910).—Dozier was sentenced 
to pay a fine for breach of an Alabama statute imposing a license tax 
on persons who did not have a permanent place of business in the 
state and also keep picture frames as a part of their stock in trade, 
if they solicited orders for the enlargement of pictures, or for picture 
frames, or if they sold or disposed of picture frames. A company 
engaged in this business in Illinois solicited orders in Alabama without 
paying a license tax. The enlarged pictures were delivered in frames 
which the purchaser might buy at factory prices if he chose to do so. 
Dozier, who also had no permanent place of business in Alabama and 
had paid no license tax was an agent of the company, who delivered 
pictures and frames and collected for them, the pictures and frames 
being sent to him and remaining the property of the company till 
paid for and delivered. The Supreme Court of Alabama, while ad¬ 
mitting that the dealings concerning the pictures were interstate com- 




Briefs, Decisions and Opinions. 


23 


merce, sustained the conviction on the ground that the sale of frames 
was a wholly local matter. This judgment was reversed by the United 
States Supreme Court, which said in a unanimous opinion by 
Mr. Justice Holmes (pp. 127-128, 128): 

“No doubt it is true that the customer was not 
bound to take the frame unless he saw fit, and that the 
sale of it took place wholly within the State of Alabama, 
if a sale was made. But as was hinted in Rearick v. Penn¬ 
sylvania, 203 U. S. 507, 512, what is commerce among the 
States is a question depending upon broader considerations 
than the existence of a technically binding contract, or the 
time and place where the title passed. ****************** 

‘We are of opinion that the sale of the frames cannot 
be so separated from the rest of the dealing between the 
Chicago company and the Alabama purchaser as to 
sustain the license tax upon it. Under the decisions the 
statute as applied to this case is a regulation of commerce 
among the States, and void under the Constitution of 
the United States, Art. 1, Sec. 8.’ ” 

Crenshaw vs. Arkansas, 227 U. S. 389 (1913).—Crenshaw and 
Gannaway were convicted under the law of the State of Arkansas 
providing “That hereafter before any person, either as owner, manu¬ 
facturer or agent, shall travel over and through any County and peddle 
or sell any ******* steel stove range, ********** buggy *********** or 
other vehicle ********, he shall procure a license as hereinafter pro¬ 
vided from the County Clerk of such County authorizing such person 
to conduct such business,” and “he shall pay into the County Treasury 
of such County the sum of Two Hundred Dollars ($200).” The Range 
Company, a corporation with its principal office and factory in Missouri, 
manufactured ranges which were sold by traveling salesmen. In 
various counties of Arkansas a division superintendent had the super¬ 
vision of its business with four other employees, two known as sample 
men or salesmen and two as delivery men, under his direction. When 
an order was taken by a salesman the purchaser signed a note for the 
purchase price to be void if the company failed to deliver the range 
• within sixty days. The division superintendent then investigated the 
credit of the purchaser, and if it was satisfactory, had the order filled. 
Deliveries were made by the company’s delivery men. Wagons and 
teams used by the agents were the company’s property. The sample 
ranges were not sold by the salesmen. The salesmen did not deliver 
ranges nor did the delivery men take orders for them. The ranges 
were shipped in car load lots to the company in care of the division 




24 


The Aluminum Cooking Utensil Company. 


superintendent, who sent to the company every month all notes and 
all cash in hand over $500, which was retained as expense money. 
Gannaway was a salesman of the company who had exhibited sample 
ranges in Arkansas and taken orders for ranges and Crenshaw was a 
delivery man who had delivered ranges to parties who had given orders 
to the salesmen. Their conviction was affirmed by the Arkansas 
Supreme Court. This judgment was reversed by the United States 
Supreme Court in a unanimous opinion by Mr. Justice Day, who said 
(pp. 399, 400-401): 

“ Nor does the fact that the law now in question was 
alleged to have been passed in the exercise of the police 
power of the State make it lawful. In Railroad Co. v. 

Husen, 95 U. S. 465, 473, this court said that the police 
power of a State cannot obstruct foreign commerce or inter¬ 
state commerce beyond the necessity for its exercise; and 
under color of it objects not within its scope cannot be 
secured at the expense of the protection afforded by the 
Federal Constitution ” ***************************** 

In the majority opinion of the Supreme Court of 
Arkansas the definition of hawkers and peddlers as under¬ 
stood at common law was recognized—as one who goes 
from house to house or place to place carrying his mer¬ 
chandise with him which he concurrently sells and delivers , 

2 Bouvier, 642—but it was said that the legislature of 
Arkansas might define the word peddlers so as to include 
such as traveled from place to place and took orders for 
goods from other States and that such persons, because 
of the statute declaring them so, were peddlers and 
liable to be taxed under the lawful exercise of the police 
power of the State. We must look , however, to the sub¬ 
stance of things, not the names by which they are labelled, 
particularly in dealing with rights created and conserved by 
the Federal Constitution and finding their ultimate pro¬ 
tection in the decisions of this court. At common law and 
under the statutes which have been sustained concerning 
peddlers they are such as travel from place to place selling 
the goods carried about with them, not such as take orders 
for the delivery of goods to be shipped in the course of com¬ 
merce. Here, as the facts show, the sample ranges carried 
about from place to place are not sold. Orders are taken 
and transmitted to the manufacturer in another State for 
ranges to be delivered in fulfillment of such orders, which 
are in fact shipped in interstate commerce and delivered 
to the persons who ordered them. Business of this 
character, as well settled by the decisions of this court, 
constitutes interstate commerce, and the privilege of 
doing it cannot be taxed by the State.” 




Briefs, Decisions and Opinions. 


25 


Rogers vs. Arkansas, 227 U. S. 401 (1913).—Rogers and others 
were convicted of peddling buggies without having paid the Arkansas 
license tax. They were salesmen of a partnership with its principal 
place of business and factory in Iowa, with manufactured buggies and 
automobiles, and had no permanent place of business in Arkansas, 
but sent a force of salesmen into that state, in charge of a superin¬ 
tendent, who travelled about exhibiting sample buggies and took orders 
for future delivery. Where orders were taken a note for the price was 
secured and the orders were turned over to a superintendent, who, if 
he found the financial responsibility of the customers satisfactory, 
transmitted the orders to an agent of the company at Memphis, 
Tennessee, where vehicles of the company were stored. The 
vehicles selected to fill the orders were tagged with the purchaser’s 
name and shipped in car load lots to the company at a place near where 
they were to be delivered. An employee of the company, usually a 
different person from the salesman, received the vehicles and delivered 
them to the purchasers, no storage house being maintained at the point. 
No vehicles, save the samples, which were never sold, were brought 
into Arkansas except for the purpose of delivery on orders previously 
taken. The conviction of the canvassers was affirmed by the Arkansas 
Supreme Court, but reversed by the Supreme Court of the United 
States, which said by Mr. Justice Day (p. 409): 

“The manner in which the business of soliciting 
orders for and delivering vehicles was done by the 
Spaulding Manufacturing Company, differs in no practical 
or material particular from that employed by the Wrought 
Iron Range Company in the case just decided ( Crenshaw 
v. Arkansas). In fact, the only difference is that the 
ranges were shipped to the company bearing no marks 
to identify the purchasers, and were delivered to the 
purchasers by the deliverymen without distinction, while 
the vehicles were tagged at Memphis and upon arrival 
in Arkansas were delivered by the deliverymen to the 
purchasers whose names appeared upon the tags attached 
to the vehicles. This is merely a matter of detail in the 
manner in which the business is conducted and does not 
affect its character. The decision in Crenshaw v. Arkansas, 
ante, p. 389, has dealt with precisely the same statute and 
substantially the same facts and controls the present 
cases.” 

This question being a federal one the decisions of the United 
States Courts are, of course, controlling thereon. We shall, therefore, 
merely refer, without comment, to cases in state courts which support 
the holdings of the federal cases we have cited: 




26 


The Aluminum Cooking Utensil Company. 


Alabama —State v. Agee, 83 Ala. 110; 

Ex parte Murray, 93, id. 78; Stratford v. Mont¬ 
gomery, 110 id. 619. 

Colorado —Ames v. People, 25 Colo. 511. 

District of Columbia— In re Hennick, 5 Mackey 489. 

Florida —Cason v. Quinby, 53 So. 741. 

Georgia —Wrought Iron Range Co. v. Johnson, 84 Ga. 754; 

McClelland v. Marietta, 96 id. 749; Stone v. 
State, 117 id. 292; Kehrer v. Stewart, 117 id. 969. 

Idaho— In re Kinyon, 9 Idaho 642. 

Illinois —Emmons v. Lewistown, 132 Ill. 382; Bloomington v. 
Bourland, 137 id. 536. 

Indiana —Martin v. Rosedale, 130 Ind. 109; Huntington v. 
Mahan, 142 id. 695. 

Kansas —Ft. Scott v. Pelton, 39 Kan. 766; State v. Hickox, 
64 id. 654. 

Kentucky —Commonwealth v. Pearl Laundry Co., 105 Ky. 259. 

Louisiana —Simmons Hardware Co. v. McGuire, 39 La. Ann., 
848; McClellan v. Pettigrew, 44 id. 356; Pegues v. 
Ray, 50 id. 574. 

Michigan —Coit v. Sutton, 102 Mich. 324; Wilcox Cordage Co. v. 

Mosher, 114 id. 64; People v. Bunker, 128 id. 163. 

Mississippi —Overton v. Vicksburg, 70 Miss. 558; Richardson v. 
State, 11 So. 934. 

Nebraska —Menke v. State, 97 N. W. 1020. 

Nevada— Ex parte Rosenblatt, 19 Nev. 439. 

New Jersey —Kolb v. Boonton, 64 N. J. L. 163. 

North Carolina —State v. Bracco, 103 N. C. 349; Wrought Iron 
Range Co. v. Campen, 135 N. C. 506. 

North Dakota —State v. O’Connor, 5 N. D. 629. 




Briefs, Decisions and Opinions. 


27 


Oklahoma —Baxter v. Thomas, 4 Okla. 605. 

Pennsylvania —Mearshon v. Pottsville Lumber Co., 187 Pa. 16. 

South Dakota —State v. Rankin, 11 S. D. 144. 

Tennessee —Hurford v. State, 91 Tenn. 669; State v. Scott, 98 
id. 254. 

Texas —Ex parte Holman, 36 Tex. Crim. Rep. 255; Talbutt v. 

State, 39 id. 64; Turner v. State, 41 id. 545; Harkins v. 

State, 75 S. W. 26. 

Virginia —Adkins v. Richmond, 98 Va. 91. 

West Virginia —State v. Lichtenstein, 44 W. Va. 99. 

Wyoming —Clements v. Town of Casper, 4 Wyo. 494; State v. 
Willingham, 9 id. 290. 

In many cases it will be found that the statute or ordinance under 
which it is attempted to levy a tax on salesmen or delivery men engaged 
in interstate commerce does not by its very terms apply to them as, 
e. g., where it imposes a tax on “hawkers” or “peddlers.” In this 
case it is unnecessary to rely on the authorities above quoted. In 
addition to the definitions quoted from the opinion of Mr. Justice Day 
in Crenshaw vs. Arkansas, supra, we may refer to the language of 
Mr. Chief Justice Groesbeck in Clements v. Town of Casper , 4 Wyo. 
494 (1893), at pages 500-501: 

“The words ‘peddler’ and ‘hawker’ have a settled 
meaning independently of statutory definition. The 
former is an itinerant trader, a person who sells small 
wares which he carries with him in traveling about from 
place to place, while the latter is also a trader who goes 
from place to place, or along the streets of a town, selling 
the goods which he carries with him, although it is gener¬ 
ally understood from the word that a hawker also seeks 
for purchasers, either by outcry, as the derivation of the 
word would seem to indicate, or by attracting notice and 
attention to them, as goods for sale by actual exposure or 
exhibition of them by placards or labels or by some con¬ 
ventional signal or noise. Of such occupations the state 
has control, and under the authority derived from the 
general incorporation act of the state, under which the 
town of Casper was incorporated, ‘to license, tax, regu¬ 
late, suppress and prohibit hucksters, peddlers’, etc. 

(Rev. Stat., 468, subdivision 9th), the town has a right 
to enact ordinances governing such occupations and 




28 


The Aluminum Cooking Utensil Company. 


regulating, licensing, taxing or prohibiting them. But 
the ordinance goes further than this and attempts to do 
what has been unsuccessfully attempted time and again, 
for the benefit and advantage of domestic dealers, to 
exclude the agents of dealers from other states, and this 
cannot be done, as the property offered for sale is not 
under the jurisdiction of or subject to regulation by the 
state or its municipalities, and is not carried about from 
place to place and exhibited for sale. The definition of a 
peddler in section three of the ordinance is not the 
generally accepted one, and under the evidence adduced 
in the case, the plaintiff in error was not one, as the 
articles he sold were delivered in the future through an 
express agent. It may be that this definition is not an 
exclusive one, but may be considered as an enlargement 
of the usual term, but the evidence plainly shows that 
the plaintiff was not a peddler in the usual understanding 
of the term, nor in the light of the definition of the ordi¬ 
nance, as he neither carried about his goods from place 
to place within the town, nor sold and delivered them 
simultaneously, nor made future delivery of them through 
a storekeeper or merchant of the town. Even where a 
commercial traveler or agent, usually denominated a 
‘drummer’, simply exhibits samples of goods kept for 
sale by his principal, and takes orders from purchasers 
for the goods, which are afterward to be delivered by the 
principal to the purchasers and payment for the goods 
is to be made to the principal by the purchasers on such 
delivery, such agent is neither a peddler nor merchant; 
nor even will a single sale or delivery of goods by such 
agent, or by any other person, out of the samples ex¬ 
hibited, or out of any other lot of goods, constitute such 
person or other person a peddler or merchant. City of 
Kansas v. Collins, 34 Kans., 434, and cases cited; Com¬ 
monwealth v. Farnum, 114 Mass., 267.” 


It is quite plain from the cases which have been cited that the 
commerce clause of the Federal Constitution prohibits the imposition 
of any tax by a state or municipality on the doing of interstate business 
by salesmen or delivery men. If the statute or ordinance imposing 
the tax makes any discrimination against non-residents of the state in 
favor of residents or against imported goods in favor of domestic 
goods, it may be attacked on still other grounds as, e. g., that it violates 
Article Four, Section 2 of the Constitution of the United States, which 
provides that ‘‘The citizens of each state shall be entitled to all privi¬ 
leges and immunities of citizens in the several states ,” or the fourteenth 
amendment which provides that ‘‘No state shall make or enforce any 





Briefs, Decisions and Opinions. 


29 


law which shall abridge the privileges or immunities of citizens of the 
United States; nor shall any state deprive any person of life, liberty, 
or property, without due process of law; nor deny to any within its 
jurisdiction the equal protection of the laws." Even where the tax is 
imposed on peddlers in the proper sense of the term it is invalid as 
applied to a person against whom it makes such a discrimination. Of 
the many cases which might be referred to we shall instance only two 
decided by the United States Supreme court: 

Welton vs. State of Missouri , 91 U. S. 275 (1875).—The defendant, 
a dealer in sewing machines manufactured outside the state of Missouri, 
went from place to place in that state selling them without a license. 
He was convicted under a statute of the state declaring that whoever 
sold goods, not the produce of the state, by going from place to place 
to sell the same should be deemed a peddler and should not so deal 
without a license, and prescribing the rates for licenses varying accord¬ 
ing to the manner of conducting the business. No license was required 
for selling goods which were the produce of the state. Judgment of 
conviction was reversed by the United States Supreme Court in a 
unanimous opinion by Mr. Justice Field. The Court’s reasoning may 
be outlined as follows: Where a business consists in the sale of goods 
a license tax required for its pursuit is in effect a tax on the goods. 
Where the subject to which the power to regulate commerce applies 
is national in its character or admits of uniformity of regulation, the 
power is exclusive of all State authority. The transportation and 
exchange of commodities is such a subject and the commercial power 
continues till the commodity has ceased to be the subject of discrimi¬ 
nating legislation by reason of its foreign character. The inaction of 
Congress is equivalent to a declaration that interstate commerce shall 
be free and untrammeled. 

Walling vs. Michigan, 116 U. S. 446 (1886).—In 1875 the Michigan 
legislature passed an act taxing any person engaged in selling or solicit¬ 
ing orders for the sale in Michigan of liquors imported into the state, 
three hundred dollars per annum. In 1881 it passed an act taxing any 
manufacturer or dealer in liquors at his principal place of business, 
five hundred dollars. The plaintiff was convicted, under the first 
statute, of selling and soliciting orders for the sale of liquors, to be 
shipped from Illinois wholesale, without a license. The judgment was 
reversed by the United States Supreme Court in a unanimous opinion 
by Mr. Justice Bradley. The reasoning of the court may be outlines 
as follows: A discriminating tax imposed by a state operating to the 




30 


The Aluminum Cooking Utensil Company. 


disadvantage of produce of other states introduced into the first men¬ 
tioned state is a regulation in restraint of commerce among the states 
and a usurpation of the power of Congress. The tax of 1875 is not 
imposed on the same class of persons as the tax of 1881 and this gives 
an immense advantage to the product manufactured in Michigan and 
to the manufacturers and dealers of that state. The police power 
cannot be set up to control the inhibitions of the Federal Constitution. 




CHAPTER III 


ALABAMA. 

U. S. Supreme Court Decisions. 
Dozier vs. Alabama, 218 U. S. 124 (1910). 

State Court Decisions. 

State vs. Agee, 83 Ala. 110. 

Ex parte Murray, 93 id. 78. 

Stratford vs. Montgomery, 110 id. 619. 


CHAPTER IV. 


ARKANSAS. 

U. S. Supreme Court Decisions. 

Crenshaw vs. Arkansas , 227 U. S. 389 (1913). 
Rogers vs. Arkansas, 227 U. S. 401 (1913). 


CHAPTER V. 


CALIFORNIA. 

U. S. Supreme Court Decisions. 

In re Tinsman, 95 Fed. 648. 

As this case is often cited as an authority, it is published herein as 
follows: 

An ordinance of Sausalito, California, provided that “It shall be 
unlawful for any person to engage in or carry on any business, trade, 
profession, or calling, for the transaction or carrying on of which a 
license is required, without first taking out or procuring the license 
required for such business, trade, profession or calling.” 

Tinsman was engaged in taking orders in the town of Sausalito 
for the enlargement of portraits by the Chicago Portrait Company, a 
corporation organized and existing under and by virtue of the laws of 
the State of Illinois, and having its principal place of business and 
factory in the City of Chicago, in said State. Said corporation had no 
warehouse, storehouse, or place of business in the State of California 
and its business was carried on by means of traveling agents or solicitors, 
who went from state to state, county to county, and town to town, 
soliciting orders for the enlargement of portraits. The orders were 
then by such agents and solicitors forwarded to the Company at its 
place of business in the City of Chicago, and there the portraits were 
enlarged, and after enlargement were returned, directed to said Company 
at the town or place where said orders were taken, and there called for 
by an agent of the said Company, and delivered to the persons who had 
ordered same. The petitioner was arrested, tried, and convicted in 
the Recorder’s Court of the Town of Sausalito for transacting the 
business of soliciting orders for said Company without having first 
obtained a license so to do, as required by said ordinance; and there- 


34 


The Aluminum Cooking Utensil Company. 


after he was sentenced by the said Recorder’s Court to pay a fine of 
$20, or serve a period of twenty days in the county jail. 

He applied for a writ of habeas corpus to the Federal Court, which 
directed that he be discharged from custody. In making the order 
Judge Morrow said: “When a law of a state imposes a tax under such 
circumstances and with such effect as to constitute it a regulation of 
interstate commerce, it is void on that account. Brown vs. Maryland, 
12 Wheat. 419; Telegraph Company vs. Texas , 105 U. S. 460; Moran vs. 
New Orleans , 112 U. S. 69, 73, 5 Sup. Ct. 38. An ordinance of a munici¬ 
pal corporation requiring persons or firms soliciting orders on behalf 
of manufacturers of goods to take out a license and pay a tax is an 
exercise, not of the police power, but of the taxing power; and when 
enforced against a person or firm soliciting orders for a manufacturer of 
goods in another state, it imposes a tax upon, and is a regulation of inter¬ 
state commerce, in violation of the provisions of the constitution of the 
United States ” ************************************************ 

“ It follows that the business of the petitioner is within the protection 
of the provision of the constitution of the United States relating to commerce 
among the several states, and the ordinance in question cannot be enforced 
against him. His imprisonment is therefore illegal, and he must be 
discharged. ” 

In the town of LEMOORE, The Aluminum Cooking Utensil Com¬ 
pany’s salesman, Mr. L. F. Crumly, was arrested for soliciting orders 
without having paid the license as required by the municipal ordinances. 
The following report appears in THE LEMOORE LEADER, a weekly 
newspaper, issue of June 12, 1914: 


CASE DISMISSED. 

The case of the City of Lemoore vs. L. F. Crumly, 
agent for the Wear-Ever Aluminum Cooking Utensils, was 
given a hearing in the City Recorder’s Court on Wednes¬ 
day, the result being a decision favorable to Mr. Crumly. 
The case was one wherein the right of Mr. Crumly to 
solicit and deliver the goods of his Company within the 
City of Lemoore without first procuring a city license, 
was involved. After the manager for said Company had 
thoroughly explained their manner of doing business, it 
was evidently plain to the city officials that Mr. Crumly 
was operating clearly within the rights afforded him by 
the interstate commerce law in his particular case. 





Briefs, Decisions and Opinions. 


35 


In the City of OAKLAND, California, The Aluminum Cooking 
Utensil Company’s salesman, Mr. George R. Long, was arrested for 
soliciting orders without having paid the license as required by the 
municipal ordinances. The outcome of the case is reported in the 
following letter from Attorneys Nowlin, Fassett & Little: 


T. W. Nowlin, 

J. F. Fassett, 

Ernest K. Little. 

E. J. Little. 

NOWLIN FASSETT & LITTLE 
Attorneys at Law. 

700-703 Foxcroft Building, 
San Francisco, Cal. 


The Aluminum Cooking Utensil Co., 

Monadnock Building, 

San Francisco, California. 

Gentlemen: 

In accordance with your request for a report on the case of People 
vs. George R. Long , we submit the following: 

Your salesman, George R. Long, was arrested in the City of 
Oakland, charged with peddling without a license. The case was 
heard on June 20th, 1914, before Hon. Mortimer Smith, Judge of 
Department One of the Police Court, City of Oakland, California. 
The defendant plead not guilty. He, however, admitted that he had 
solicited orders in the City of Oakland, which orders were sent to your 
Portland office together with a requisition for the amount of goods 
called for in such orders and the goods were thereupon shipped to him 
and delivered by him to the customers and the money collected therefor. 

On behalf of defendant, we suggested two questions (1) that the 
transaction being interstate in its nature was not subject to regulation 
by city ordinance, and (2) that the defendant was not peddling within 
the meaning of the city ordinance. 

The court stated that he presumed that we would want a ruling on 
the first question as the discharge of the defendant on the second 
question might result in his immediately being arrested on the charge 
of soliciting orders without a license. The first proposition was there¬ 
upon argued and the court’s attention called to the decisions of the 


Phone, Douglas 4112. 
Cable Address “Nowfas” 


June 23, 1914. 





36 


The Aluminum Cooking Utensil Company. 


Supreme Court of the United States holding that such transactions 
were a part of interstate commerce and, therefore, not subject to state 
regulation, and we also cited to the court a decision by Judge Morrow, 
in the Federal Court of this District, (In re Tinsman, 95 Federal 648). 
In that case the defendant was arrested and convicted in the Police 
Court of Sausalito, Marion County, California, on a similar charge. 
The case came before Judge Morrow on a petition for a writ of habeas 
corpus and the prisoner was discharged, the court holding that the 
application of the ordinance to the defendant who was engaged in 
soliciting orders for goods to be shipped in interstate commerce would 
be a violation of the Constitution of the United States, which reserves 
to Congress the sole right to regulate interstate commerce. 

The attention of J udge Smith was also called to the decision of the 
Supreme Court of the State of California in the case of Mulford vs. 
Curry , 163 Cal. 276, in which the court held that any fee or requirement 
imposed by an act of a State Legislature or by City Ordinance would 
be invalid and unconstitutional in its application to transactions involv¬ 
ing commerce between the States. After argument the court ordered 
the defendant discharged. 

Yours truly, 

NOWLIN, FASSETT & LITTLE, 
(Signed) Ernest K. Little 




CHAPTER VI 


COLORADO. 
State Court Decisions. 

Anes vs. People, 25 Colo. 511. 


CHAPTER VII. 


CONNECTICUT. 


RICHARD H. DEMING, 

Attorney at Law, 

36 Pearl Street, 

Hartford, Conn. 

October 27, 1913. 


Aluminum Cooking Utensil Co., 

Pittsburgh, Pa. 

Gentlemen: 

On October 15, 1913, I interviewed John H. Light, Attorney 
General for the State of Connecticut, on the question of the liability 
of your agents under our Itinerant Vendors Law, Sec. 4662 General 
Statutes, Revision of 1902 and amendments. I set forth, in detail, 
the nature of the business, the manner of soliciting and selling and 
methods used by your agents in distributing your goods to prospective 
customers in this State in the following terms: 

“The Aluminum Cooking Utensil Company is a Pennsylvania 
corporation having its principal office in the City of Pittsburgh, and its 
manufacturing plant at New Kensington, Pa., at which latter point 
alone it manufactures cooking utensils which are being sold in the 
State of Connecticut in the following manner: the Company in 
question employs traveling salesmen who carry samples of its utensils 
and who solicit orders by a house to house canvass. When orders are 


Briefs, Decisions and Opinions. 


39 


received by the traveling salesmen they are forwarded to the offices of 
the Company at Pittsburgh and the orders are filled from its manufactur¬ 
ing plant at New Kensington, Pa. The goods are then shipped to the 
salesmen to be delivered to the respective purchasers. No goods are 
given to the salesmen except to fill orders actually received and the 
Company carries no stock of goods in any of the states, except Pennsyl¬ 
vania, as above indicated and a stock of goods at East St. Louis, Ill., 
and Portland, Oregon.” 

The Attorney General and I studied, in detail, the Connecticut 
statutes on Intinerant Vendors and the Connecticut cases based on 
those statutes. In my opinion the facts presented bring the case 
within the decisions of our Supreme Court in State vs. Felterer, 65 
Connecticut 293 and in State vs. Feingold , 77 Connecticut 326. The 
Attorney General agreed with me fully in my interpretation of the law 
and expressly authorized me to quote him in this matter. 

He said, “I am of the opinion that The Aluminum Cooking 
Utensil Company doing business as you have stated to me, can do 
business in the State of Connecticut through its agents who should not 
be molested by any local authorities in requiring of them licenses to 
sell its goods and ware in their respective jurisdictions; that a business 
conducted as The Aluminum Cooking Utensil Company conducts its 
business can be continued under the Interstate Commerce Law without 
restriction. ” 

Yours very truly, 

Richard H. Deming. 




CHAPTER VIII 


DISTRICT OF COLUMBIA. 

U. S. Supreme Court Decisions. 

Stoutenburgh vs. Hennick, 129 U. S. 141 (1889). 

State Court Decisions. 


In re Hennick , 5 Mackey, 489. 


CHAPTER IX. 


FLORIDA. 

State Court Decisions. 

Cason vs. Quinby, 53 So. 741. 

Quinby having been a “ WEAR-EVER” salesman a history of the 
case follows: 


First Judicial Circuit of Florida, 
Circuit Court of Jackson County. 


Ex Parte 

U. B. Quinby, Habeas Corpus. 

Writ of Habeas Corpus having been issued this day upon the 
petition of U. B. Quinby, alleging that he was convicted of carrying 
on and conducting a business for which a license is required without 
first obtaining such license, to-wit:—that of soliciting orders for delivery 
of merchandise and collecting same, and had been sentenced by the 
Justice of the Pease to pay a fine of $75.00 and costs and in default of 
the payment of the fine and costs that he serve for and during the period 
of six months in the County jail at hard labor. And that he had not 
paid said fine and was held by the Constable of said Court under 
sentence and unlawfully detained and restrained of his liberty in the 
custody of said Constable, one James Cumerford, That said statute 
under which the charge is made is invalid in this: that the statute is in 
direct violation of the Interstate Commerce Laws of the United States, 
which prevent the licensing and taxing of parties selling goods through 
one State to another. That he is a traveling salesman for The Aluminum 
Cooking Utensil Co., of Pittsburgh, Pa., there located and that petitioner 


42 


The Aluminum Cooking Utensil Company. 


sells the products of said Company by taking orders therefor which 
orders are mailed to the Company in Pennsylvania, which orders are 
taken and filled separately upon said orders and shipped into Florida 
to petitioner, who delivers the article so ordered to the original customer 
and collects the price therefor at the time of such delivery. That he 
does not carry around goods with him for sale and delivery, etc. That 
he is not guilty of violating any criminal statute against the laws of 
Florida nor of the United States. 

Upon return of the writ, admitting the allegations of fact of the 
petition and setting up the Commitment of the said J. P. Court, the 
evidence used before said court being an admitted state of facts, it 
appeared that the petitioner had only solicited orders for goods for a 
firm outside of the State of Florida, and that the goods were shipped 
to him on these orders and delivered to the customers, who had given 
the orders, and that no sale was made of goods already within the 
State of Florida, before the taking of the orders therefor, the commis¬ 
sioner is of the opinion that the business so done is within the Interstate 
Commerce Law and that a license cannot be required by the State 
therefor. Re Spain 14 L. R. A., 97; Brennan vs. Titusville, 153 U. S. 
289—38 L. ed. 719,—4 Interstate Commerce Reports 658, in addition 
to the case of Gibbons vs. Ogden , 9 Wheaton 1 to 240—6 L. ed. 23, etc. 

It is therefore ordered that the petitioner be and he is hereby 
discharged from custody. 

Done and ordered at Marianna, Jackson County, Florida, in the 
absence of the Circuit Judge of the First Judicial Circuit of Florida 
from the County of Jackson, this 29th day of April, A. D. 1910. 

(Signed) Wm. B. Farley, 

Circuit Court Commissioner for 
Jackson County, Florida. 

In “Cason,” Chief of Police vs. U. B. Quinby, 53 South “741,” 
the Supreme Court of Florida, Division A, June term, 1910, under 
date of November 29 1 1910, confirmed the above judgment in habeas 
corpus, releasing U. B. Quinby from custody. Opinion by Judge 
C. J. Whitfield, with Judges Shackleford, Cockrell, Taylor, Hocker 
and Parkhill concurring. 


Cora Kiplinger, C. E. Kiplingerand H. M. Kiplinger, all “WEAR- 
EVER” salesmen, were placed under formal arrest at the City of 





Briefs, Decisions and Opinions. 


43 


ST. PETERSBURG, Florida, for refusing to take out a license. By 
mutual consent an agreed statement of facts was submitted informally 
to Circuit Judge J. B. Wall, of Tampa. The statement of facts and 
opinion of Judge Wall are as follows: 

In the Circuit Court, Sixth Judicial Circuit, Hillsboro County, 

Florida. 


Cora Kiplinger, 

vs. APPEAL. 

City of St. Petersburg. 

Plaintiff above was arrested for a violation of Ordinance 189, 
Section A, Article 3, of the City of St. Petersburg, which reads as follows: 

ORDINANCE 189. 

An ordinance fixing license taxes for the year begin¬ 
ning November 1st, 1909, and for each succeeding year 
thereafter: 

Section A, Article 3. Agents or traveling representa¬ 
tives of merchants selling from samples to persons other 
than resident merchants, per day $10.00. 

C. E. Kiplinger and H. M. Kiplinger were also arrested for a 
violation of the same ordinance. All plead “not guilty” but admitted 
the selling by sample, and were fined each $50 and costs. 

It was agreed by counsel for both sides in open court that the 
ordinance with a statement should be submitted to the Circuit Judge, 
Hon. J. B. Wall, permission given plaintiff to cite United States Supreme 
Court decision. 

The plaintiff’s position briefly stated is that she, and the other 
two mentioned, are the representatives of the Aluminum Cooking 
Utensil Co. of Pittsburg, Pa., who have no office, stores, storage or 
warerooms in the State of Florida. The sales of the above Company’s 
goods are made by private demonstration in the house of some individual 
to whom others in the neighborhood are invited, orders are taken from 
purchasers, which orders are transmitted to the Pittsburg Cooking 
Utensil Company at their home office in Pittsburg, Pa., from where 
the goods are shipped in one package to some one of the three herein 
named, and by them delivered, and the collection made. 

Therefore the plaintiff in pleading not guilty felt she had not 
violated any of the ordinances of the City of St. Petersburg, inasmuch 
as being engaged in interstate commerce her position being that such 




44 


The Aluminum Cooking Utensil Company. 


ordinance would not apply to her business, she not making the sales 
of any of the samples which were shown. 

In support of the plaintiff’s position, she cites the United States 
Supreme Court, Vol. 185, Page 27, and the decisions there cited. 

Respectfully submitted, 

(Signed) J. S. Davis, 

Attorney for Plaintiff. 

(Signed) Grant Aiken, 

Attorney for the City of St. 
Petersburg. 


J. B. WALL 

Judge of the Sixth Judicial Circuit of Florida. 


Tampa, Fla., January 19, 1910 


Hon. H. A. Murphy, 

Mayor of St. Petersburg, 
St. Petersburg, Fla. 


Dear Sir: 

A question has been informally submitted to me as to whether 
or not your City has the power to impose upon traveling agents of a 
Mercantile Co. or manufacturer whose business is wholly outside this 
State a license tax, or fee for exhibiting, and selling by sample, to 
residents of your City, the wares of their Company. The Supreme 
Court of the United States has recently held that such cannot be done, 
on the ground that it conflicts with that provision of the Federal 
Constitution which inhibits state legislatures from passing acts which 
would regulate, or interfere with commerce between the States. 

I have no hesitancy in advising you that, in my opinion, the 
ordinance cannot be enforced. 


Yours truly, 

J. B. Wall, 


Circuit Judge. 





CHAPTER X 


GEORGIA. 

State Court Decisions. 

Wrought Iron Range Co. vs. Johnson , 84 Ga. 754. 
McClelland vs. Marietta , 96 id. 749. 

Stone vs. State, 117 id. 292. 

Kehrer vs. Stewart, 117 id. 969. 


CHAPTER XI. 


IDAHO. 

Tom Driscoll, a “WEAR-EVER” salesman, working in the State 
of Idaho, was informed by the municipal authorities that a license 
would be required. His father, Mr. Tim Driscoll, an attorney at 
Payette, Idaho, addressed a letter to the office of the Attorney General 
of the State, and the opinion of Assistant Attorney General, O. M. 
VanDuyn follows: 


D. C. McDougall, 

Attorney General. 


STATE OF IDAHO. 


Jos. H. Petekson, 

Owen M. VanDuyn, 

Assistants. 


Office of the Attorney General. 

Boise, July 18, 1911. 


Hon. Tim Driscoll, 

Payette, Idaho. 

Dear Sir: 

I have just received your letter of July 17th, 1911, in which you 
ask my opinion in regard to whether or not one taking orders within 
the State of Idaho and delivering goods not at the time of taking orders 
but thereafter is subject to a peddler’s or hawker’s license. The rule 
of law is as laid down by the Supreme Court in re Kinyon, 9 Idaho, 
Page 642, and in re Abel, 10 Idaho, 288, that one who takes orders in 
the State of Idaho and is not the owner of the goods, and does not 
deliver at the time of taking the order, but delivers thereafter and 
from another State is not subject to a peddler’s or hawker’s license. 
In re Kinyon, there is a digest of all the pertinent authorities upon this 
question among which are many cases of the Supreme Court of the 
United States. 


Briefs, Decisions and Opinions. 


47 


Any restriction requiring parties of the kind mentioned in this 
decision to take out a license is contrary to Sec. 8, Art. 1, of the Con¬ 
stitution of the United States, in that it is an attempt to regulate or 
interfere with Interstate Commerce. 

It must always be borne in mind, however, that if the party taking 
the orders has the goods with him in the State of Idaho, and delivers 
at the time of taking the orders, he will then be subject to a license-tax— 
otherwise he will not. 


Yours very respectfully, 

O. M. VanDuyn, 

Assistant Attorney General. 




CHAPTER XII. 


ILLINOIS. 

In this State the Company maintains a warehouse and shipping 
depot at East St. Louis, in St. Clair County. As shipments to all 
salesmen within the State are made from the East St. Louis warehouse 
the Interstate Commerce defense cannot be used. However, “ WEAR- 
EVER” salesmen are exempt from the payment of municipal licenses 
under the laws and decisions of Illinois as shown in the following brief 
of Messrs. Kramer, Kramer & Campbell of East St. Louis: 

Edward C. Kramer, 

Rudolph J. Kramer, 

Bruce A. Campbell, 

William H. Hebenstreit, 

Ferdinand W. Abt. 


KRAMER KRAMER & CAMPBELL, 

Attorneys at Law, 

Rooms 624-633 Murphy Building, 

East St. Louis, Illinois. 

BRIEF OF AUTHORITIES EXEMPTING SALESMEN AND 
DELIVERYMEN ENGAGED IN SOLICITING ORDERS FOR 
FUTURE DELIVERY FOR THE ALUMINUM COOKING 
UTENSIL COMPANY, DELIVERY TO BE MADE 
FROM ITS WAREHOUSE IN EAST ST. LOUIS, 
ILLINOIS, FROM LICENSE TAXES IM¬ 
POSED BY MUNICIPALITIES WITHIN 
THE STATE OF ILLINOIS. 


Municipalities of the State of Illinois have only such power to 
impose license taxes as are conferred upon them by the State of Illinois. 

The General Assembly of the State of Illinois, by the general Act 
of 1872, in Paragraph 41 of Section 1, of Article 5, Jones & Addington 



Briefs, Decisions and Opinions. 


49 


Illinois Statutes Annotated, Vol. 1, Page 938, conferred upon the city 
council in cities and president and board of trustees in villages and 
incorporated towns the power to “license, tax, regulate, suppress and 
prohibit hawkers, peddlers, etc.” 

In 1887 the General Assembly of the State of Illinois passed an 
Act entitled, “An Act to extend the powers of the city council in cities 
and the president and board of trustees in villages and incorporated 
towns,” Jones & Addington Illinois Statutes Annotated, Vol. 2, Page 
1229, wherein it was provided that the city council in cities and president 
and board of trustees in villages and incorporated towns shall have power 
to license, tax, regulate, suppress or prohibit itinerant merchants and 
transient venders of merchandise. 

These are the only powers that have been conferred by the State 
of Illinois upon cities, villages and towns to levy such license taxes, and 
the question, therefore, for determination is whether or not the agents 
of the Aluminum Cooking Utensil Company who solicit orders for 
future delivery are “peddlers, hawkers, itinerant merchants or transient 
venders of merchandise.” Under the holdings of the Courts of Illinois 
they do not come within any of these. 

We hardly deem it necessary to cite authorities upon the question 
that cities and villages have only such authority to levy license taxes 
as is conferred upon them by the State of Illinois. However, our 
Courts have passed upon this question and we cite the following 
authorities: 

City of Chicago vs. Blair, 149 Ill., 310. 

Seeger vs. Mueller, 133 Ill., 86. 

In the case of the City of Chicago vs. Blair, 149 Ill., 310, the Court 
says, on Page 318 of the opinion: 

“The tendency of municipal government to arrogate 
to itself power and to encroach upon the rights of the 
citizen has led to the establishment of the statutory rules 
of construction limiting its powers to those expressly 
granted, or arising by reasonable and necessary implica¬ 
tion, from the grant.” 

AGENTS WHO SOLICIT ORDERS FOR FUTURE DELIVERY 
ARE NOT PEDDLERS OR HAWKERS. 

Rawlings vs. Village of Cerro Gordo, 32 Ill., App., 215; Affirmed 135 
Ill., 36. 




50 


The Aluminum Cooking Utensil Company. 


City of Olney vs. Todd, 47 Ill., App. 439. 

Emmons vs. City of Lewistown, 132 Ill., 380; 8 L. R. A., 328; 22 Am. 
St., 540. 

Twinning vs. City of Elgin, 38 Ill., App., 356. 

In the case of Emmons vs. City of Lewistown, supra, Emmons was 
a resident of Logan County, Illinois, and was engaged in the City of 
Lewistown, in canvassing and taking orders for the sale of books to be 
paid for by the purchaser when delivered, and was arrested for violating 
an ordinance of the city prohibiting canvassing for books or taking 
orders in the City of Lewistown without a license. 

It was admitted upon the trial that appellant was, at the time of 
his arrest, actually engaged in soliciting and taking orders for the books 
from house to house within the limits of the city and that he had not 
procured license under the city ordinance. 

The Court says that the question of interstate commerce is in the 
case because the house for which Emmons was canvassing was located 
in St. Louis, Missouri, and they say that that question is involved if 
the ordinance is otherwise valid, but they hold that is is not necessary 
to determine the question of interstate commerce because the ordinance 
is invalid on other grounds. The Court says that the only power, if 
any, conferred upon the City of Lewistown to license Emmons is 
contained in the power given by the Legislature to cities and villages 
to license and prohibit hawkers and peddlers, and that unless the 
business that he was doing comes within the designation of hawkers and 
peddlers the city council had no power to require him to pay a license. 

The Court then quotes the City of Chicago vs. Bartee, 100 Ill., 61, 
where it is held that the term “peddler” as used in this statute was to 
be taken in its general and unrestricted sense and embraces all persons 
engaged in going through the city from house to house and selling 
commodities. Abbott’s Law Dictionary is quoted in support of the 
definition, as are Tomlin, Bouvier and Webster. After reviewing the 
authorities relative to the definition of “hawker” and “peddler,” the 
Court says, on Page 384 of the opinion: 

“This list of definitions might be extended almost 
indefinitely, but enough has been given to show both the 
legal and popular meaning of the words ‘hawker’ and 
‘peddler.’ It has never been understood, either by the 
profession or the people, that one who is ordinarily styled 
a ‘drummer,’—that is, one who sells to retail dealers or 
others by sample,—is either a hawker or a peddler; and 




Briefs, Decisions and Opinions. 


51 


the same is true in respect of persons who canvass, taking 
orders for the future delivery of books and periodicals or 
other publications. It is a fundamental canon of con¬ 
struction, that the legislature must be presumed to have 
used these words in their known and accepted signification, 
and intended thereby to confer upon the city and village 
authorities power to license, regulate and prohibit only 
such callings and vocations as might fall within the 
terms employed in the act as thus known and understood. 
To concede that the power of the city to license, tax or 
regulate the canvassing for books or publications within 
the city is doubtful, is to deny the power. ” 


And the Court further says, on Page 385 of the opinion: 

“While it must be conceded that the evil resulting 
from the method of canvassing from house to house may 
be great,—indeed, as great as that resulting from the 
vocations authorized by the statute to be taxed and 
regulated, and, indeed, may be even greater,—yet, if the 
legislature, as we are constrained to hold, has not con¬ 
ferred upon cities and villages the power to tax or regulate 
the same, if relief is to be obtained, resort must be had to 
the legislative department of the state. 

We are of opinion that so much of the ordinance as 
prohibits canvassing for books and publications in said 
city without obtaining a license therefore is void, for want 
of power in the city authorities to ordain the same, and 
appellant, not falling within the designation of a ‘hawker’ 
or ‘peddler’, was not amendable to prosecution under the 
valid portions of said ordinance.” 

In the case of the Village of Cerro Gordo vs. Rawlings , 135 Ill., 36, 
on Page 40 the Court, in its opinion, says: 

“The evidence introduced on the trial in the circuit 
court showed that Rawlings went about the village carry¬ 
ing a case containing samples of sugar, tea, coffee, etc., 
and that he took orders for goods, addressed to Q. W. 
Lovering Co., of Chicago, by whom the orders were to be 
filled and the goods sent by express, C. O. D. to the persons 
giving the orders, and he represented that he was the 
authorized agent of said firm. That this mode of doing 
business did not constitute Rawlings a peddler is expressly 
decided in Emmons vs. City of Lewistown, 132 Ill., 380. 

We have carefully examined the brief and argument of 
counsel for appellant, and find no sufficient reason for 
departing from the views there expressed. 

The judgment of the Appellate Court is in harmony 
with that decision, and must be affirmed. ” 




52 


The Aluminum Cooking Utensil Company. 


AGENTS WHO SOLICIT ORDERS FOR FUTURE DELIVERY 

ARE NOT ITINERANT MERCHANTS OR TRANSIENT 
VENDERS OF MERCHANDISE. 

City of Carrollton vs. Bazzette , 159 Ill., 284; 31 L. R. A., 522. 

City of Waterloo vs. Heely, 81 Ill., App., 310. 

Nagele vs. City of Centralia , 81 App., 334. 

City of Peoria vs. Guggenheim , 61 Ill., App., 374. 

Twinning vs. City of Elgin, 38 Ill., App., 356. 

In the case of the City of Waterloo vs. Heely , 81 Ill. App., 310, on 
Page 313 of the opinion the Court says: 

“Appellee was an employee of the firm of McCullough 
& Reincke, merchants permenantly located and doing 
business in the City of Belleville, in this State, dealing in 
tea, coffee, spices and other articles of merchandise, and 
as such employee appellee solicited and took orders for the 
sale of coffee, tea and spices, to be delivered on a future 
day to several persons, householders within the City of 
Waterloo, for their own consumption, the orders being 
taken and the goods afterward and on a certain future 
day delivered by and paid for to appellee, within the 
limits of the City, without a license from the City. For 
these acts appellee was arrested on the charge of violating 
an ordinance of the City, and after a trial before a police 
magistrate, was found guilty, and fined $2 and costs.” 

From this judgment he appealed to the Circuit Court of Monroe 
County where trial was had and he was found not guilty. The City 
took an appeal to the Appellate Court. 

Section 2 of the ordinance which it is claimed was violated provides 
for the licensing of persons who shall solicit orders within the City, 
which are to be delivered on a future day. The Court on Page 314, 
says: 

“The ordinance was evidently intended by its makers 
to be based upon the power given to the City, under an act 
of legislature in force July 1, 1887, which reads as follows: 

‘That the city council in cities, and the 
president and board of trustees in villages 
and incorporated towns, shall have the 
power to license, tax, regulate, suppress or 
prohibit itinerant merchants and transient 
venders of merchandise.’ 

It is further evident that the makers of the ordinance 
intended it should embrace cases like this, and we are 
asked to give the law a liberal construction, if necessary, 
to make it potential to sustain the intent of the makers of 
the ordinance.” 




Briefs, Decisions and Opinions. 


53 


The Court concludes, in its opinion on Page 316: 

“He was, in our opinion, no more an itinerant 
merchant or transient vender of merchandise, in what he 
did, than he would have been had he sat quietly in the 
store of his employers in Belleville and talked with his 
customers in Waterloo through the telephone and sent 
the goods to purchasers by delivery wagon with the bills 
for them to be collected on delivery of the goods. 

It is unnecessary to inquire whether any of the acts 
appellee did make him amendable to the provision of the 
ordinance until we first determine that the city council 
had the power, under the law, to requite him to take out a 
license to do the acts; and since we hold that appellee was 
neither an itinerant merchant nor a transient vender of 
merchandise, it follows that the judgment of the Circuit 
Court was right, and hence it is affirmed.” 

In the case of Twinning vs. City of Elgin, 38 Ill., App., 356, the 
Court says: 

“Indeed, the term ‘peddler,’ ‘transient vender of 
merchandise and itinerant merchant’ means $nd implies 
persons who sell and deliver goods, wares or merchandise 
or who barter or exchange on delivery thereof other 
commodities therefor. We understand that the terms 
‘itinerant merchant’ and ‘transient vender of merchandise’ 
as used in the Act of June 16, 1887, Laws 1887, Page 117, 
mean and were intended to apply to those persons who 
for a short space of time locate in a city and make sale 
and delivery of their goods, as other merchants do, or 
those who carry or transport their goods from house to 
house, or place to place, and make sale and delivery of 
their goods in like manner as other merchants and sales¬ 
men do. 

If we are correct in the foregoing premises, it must 
follow that appellant was not at the time of the act com¬ 
plained of pursuing the vocation of ‘peddler,’ ‘itinerant 
merchant’ and ‘transient vender of merchandise,’ making 
sale and delivery of goods contemplated by and within 
the meaning of the statute above cited, but was pursuing 
the vocation of a ‘drummer,’ that is, one who solicits 
trade for retail dealers or others by sample, or one whose 
business it is to canvass and take orders for future 
delivery. ” 

In the case of Nagele vs. City of Centralia, 81 Ill. App., 334, the 
same doctrine is laid down. It is true that this latter decision was 
reversed by the Supreme Court but solely upon the ground that the 
Appellate Court erred in awarding execution against the City which, 
under our law, cannot be done. 



54 


The Aluminum Cooking Utensil Company. 


We are therefore of the opinion that so long as you conduct business 
in the present manner, that is, solicit orders for goods for future delivery 
and then on delivery collect therefor, the city council in cities and the 
president and board of trustees in villages and incorporated towns have 
no power to license your salesmen or deliverymen. 

We deem it unnecessary to discuss other matters that might come 
up in relation to some particular ordinance, such as invalidity on 
account of discrimination between classes or persons, etc., because 
that would merely be a technical defense to a particular ordinance and 
would have no bearing on the general question of the power of cities 
and villages to license our salesmen and deliverymen. 

Respectfully submitted, 

Kramer, Kramer & Campbell, 

Attorneys at Law, East St. Louis, Ill. 

The opinion of Messrs. Kramer, Kramer & Campbell as outlined 
in the foregoing brief is supported by Attorney General P. J. Lucey, 
whose letter follows. Mr. Lucey not only supports the opinion of 
Messrs. Kramer, Kramer & Campbell as concerns intrastate shipments 
but also confirms the protection of interstate commerce in event the 
goods are shipped from outside of the State. 


STATE OF ILLINOIS, 

OFFICE OF THE ATTORNEY GENERAL, 
Springfield. 

P. J. Lucey, 

Attorney General. 


CITIES AND VILLAGES: 

Powers—Licensing Solicitors. 

E. C. Kramer, Esq., 

Attorney at Law, 

Rooms 624-633 Murphy Building, 
East St. Louis, Illinois. 

Dear Sir: 


October 13, 1913. 


I am in receipt of your communication of the 8th instant, from 
which it appears that, 

.“The home office of the Aluminum Cooking Utensil 
Co. is at New Kensington, Pennsylvania. It also has a 
warehouse in the City of East St. Louis. It has canvassers 




Briefs, Decisions and Opinions. 


55 


in the State of Illinois taking orders for goods where the 
orders are filled from the home office at New Kensington, 

Pa. It also has canvassers in the State of Illinois, taking 
orders that are filled from the warehouse in the City of 
East St. Louis. In no case do these canvassers deliver 
goods at the time the orders are taken, but simply take 
orders for the same, forward them either to the home 
office at New Kensington, Pa., or at East St. Louis, where, 
if they are accepted, the orders are filled and the goods 
afterwards shipped.” 

You request my opinion upon the two points involved in the above 
quoted statement of facts. You enclose a brief in support of your 
conclusion as to the law applicable to the facts, which conclusion is, 
in substance, as follows: 

First:—That where orders are taken by canvassers 
or solicitors for orders in Illinois for a foreign corporation 
to be afterwards approved or rejected by said foreign 
corporation at its home office and, if they are approved 
and accepted, to be filled by shipment of goods from its 
home office in such other State, such transactions con¬ 
stitute interstate commerce, and municipalities in the 
State of Illinois have no right to require such canvassers 
or solicitors to obtain a license from cities, villages and 
incorporated towns; that all ordinances of such cities, 
villages and incorporated towns requiring a license in 
such cases constitute an unconstitutional burden on 
interstate commerce, and, therefore, beyond the police 
powers of the State. 

Second:—That cities, villages and incorporated 
towns have no power by ordinance to impose upon can¬ 
vassers or solicitors for orders in Illinois for a foreign 
corporation, even though such orders are afterwards 
approved, accepted and filled from a warehouse in this 
State, of such foreign corporation, not because such trans¬ 
actions constitute interstate commerce, as in the other 
case above stated, but because the legislature has not 
delegated to cities, villages and incorporated towns the 
power to require a license in such cases; that the legislature 
has conferred upon cities, villages and incorporated towns 
the power by ordinance to require hawkers, peddlers, 
itinerant merchants and itinerant venders of merchandise 
to pay a license fee, but that canvassers taking orders for 
goods to be afterwards shipped, even though such orders 
be filled and the goods shipped from a warehouse located 
in this State and belonging to such foreign corporation, do 
not come within any of these classes; and that the courts 
of Illinois have held that canvassers or solicitors for 
orders for goods to be afterwards filled, shipped and 
delivered are not hawkers, peddlers, itinerant merchants 
or itinerant venders of merchandise within the meaning 
of the provisions of the cities and villages act. 



56 


The Aluminum Cooking Utensil Company 


It has been the uniform policy of this department to decline to 
give unofficial opinions under the circumstances here presented. Since, 
however, this department has repeatedly passed on these provisions, 
it would not be a departure from the rule, and I see no impropriety in 
advising you that your contentions and conclusions as to the law in 
such cases are in harmony with the repeated holdings of this depart¬ 
ment. 

I return herewith the brief submitted with your letter. 

Very respectfully, 

P. J. Lucey, 

Attorney General. 


2-P. 

Enclosures. 




CHAPTER XIII 


INDIANA. 

U. S. Supreme Court Decisions. 

Pabst Brewing Co. vs. City of Terre Haute , 98 Fed. 330 (C. C., 
D. Indiana—1899). 


State Court Decisions. 

Martin vs. Rosedale, 130 Ind. 109. 
Huntington vs. Mahan , 142 id. 695. 


John E. Gibson, a “WEAR-EVER” salesman, was arrested at 
EVANSVILLE, Indiana, for refusing to take out a license. The case 
was contested in the City Court and is reported as follows by Mr. 
Gibson’s attorneys: 


RAEBER & DOWNEY, 
Attorneys and Counselors, 

Evansville, Ind. 


April 22, 1910. 

The Aluminum Cooking Utensil Co., 

Pittsburgh, Pa. 

Gentlemen: 

The facts in the case of the City of Evansville vs. John E. Gibson 
are as follows: 

The defendant was arrested on April 5th, 1910, for violating 
Sections 47 and 49 of an ordinance of the City of Evansville, Indiana. 


58 


The Aluminum Cooking Utensil Company. 


Section 47 of said ordinance reads as follows: “It shall be unlawful 
for any person, either by himself or agent, to transact any business, 
or do any act without procuring a license from the city authorities 
therefor, when such license is required by an ordinance of the city 
heretofore passed or hereafter to be passed.” Section 49 provides for 
the recovery of any sum not exceeding Fifty Dollars for violation of 
any of the provisions of said ordinance. 

The City of Evansville had in force on said day an ordinance 
declaring it to be unlawful for any person to engage in the business 
of hawking or peddling in said city or to take orders for goods, wares, 
or other articles or things, for immediate or future delivery, without 
first having procured a license. 

The case came up for trial in the City Court of the City of Evans¬ 
ville and the defendant entered a plea of “Not Guilty.” 

The defendant made a motion to quash the complaint on the 
ground that it did not allege the date on which the ordinance was 
passed. At the suggestion of the Court it was agreed to let the Court 
hear the evidence and the arguments and he would decide on the 
sufficiency of the complaint later, and as to whether or not there was 
any liability on the defendant’s part. 

Counsel for defendant made a statement to the Court as follows: 
“The defendant, John E. Gibson, is employed by The Aluminum 
Cooking Utensil Co. of Pittsburgh, Pa., to sell its goods, which consists 
of utensils used for cooking purposes. The Aluminum Cooking Utensil 
Co. is a corporation organized under the laws of Pennsylvania, and a 
citizen of that state, with its place of business at Pittsburgh, Pa. The 
method used by Gibson to sell the goods is to carry a line of samples 
from door to door, and if he finds anything he exhibits is wanted by 
the householder he takes the order for it. No sample in the hands of 
defendant was ever sold. The orders are consolidated by him and sent 
in to the company at Pittsburgh, where they are filled. The goods are 
placed in one or more boxes and consigned to defendant, to be by him 
delivered as soon as received. None of the goods sold by defendant 
were in the state at the time of taking the order.” 

The prosecuting attorney agreed to the above statement of facts, 
and no evidence was introduced. 

In our argument we contended that as the goods had not, at the 
time of their sale, come into the state, had not become mingled with 
the mass of property within this state, were not subject to inspection 




Briefs, Decisions and Opinions. 


59 


and delivery at the time of the sale, the soliciting of orders and the 
subsequent shipment and delivery from another state were transactions 
of interstate commerce, which transactions could neither be prohibited 
nor regulated by the state or its municipalities, therefore the ordinance 
defendant was charged with violating was void as to him. 

The court discharged the defendant on the ground that the com¬ 
plaint was bad and gave as his opinion that the defendant would not 
be liable, under the ordinance, for selling goods as he did. 

Very truly yours, 

(Signed) RAEBER & DOWNEY. 




CHAPTER XIV. 


IOWA. 


A “WEAR-EVER” salesman, - Hunter, in 1905, was 

notified by the town authorities at Spencer, Iowa, that he would be 
required to pay a license. Attorney G. H. Martin, who happened to 
be the Mayor of the town at the time, upon learning the exact nature 
of the business, withdrew the demand for license. His opinion follows: 


Office of 

G. H. MARTIN, 
Attorney at Law, 

Spencer, Iowa. 


Attorney for 

C., M. & St. P. Railway, 
C., R. I. & P. Railway, 
Citizens National Bank. 


Spencer, Iowa, June 29, 1905. 

The Aluminum Cooking Utensil Company, 

Pittsburgh, Pa. 

Gentlemen: 

Replying to your letter of June 24, 1905, will say that on my 
return to Spencer, Mr. Hunter called to see me and on learning your 
plan of doing business, I told him that no license would be required. 
He told me that this was in substance the plan of doing business: that 
he took the orders for future delivery as the agent of your Company; 
that the orders were sent to the Company, the goods shipped; that he 
delivered the goods as the agent of the Company and collected the 
price of the goods as your agent and retained therefrom his commission, 



Briefs, Decisions and Opinions. 


61 


remitting the remainder to you. That puts you in the Interstate 
Commerce class and my city through no act of mine will become in¬ 
volved in litigation through such a state of facts. So long as your 
representatives confine themselves to this line of business they will not 
be interfered with by our city. 

Very truly yours, 

(Signed) G. H. Martin, 
(Mayor of Spencer, Iowa.) 


Attorney General, Special Counsel, 

George Cosson. Henry E. Sampson . 

Assistant Attorneys General, 

John Fletcher, 

C. A. Robbins. 

STATE OF IOWA, 

Department of Justice, 

Des Moines. 


December 16, 1913. 


E. B. Evans, Dean, College of Law, 

Drake University, Des Moines, Iowa. 

Dear Sir: 

Yours of the 9th, instant, addressed to the attorney general has 
been referred to me for reply. 

Your question briefly stated is whether or not an agent taking 
orders in this state for cooking utensils or other products of aluminum 
produced and owned by the principal in another state where the order 
is accepted or rejected, according to the will of such owner, may lawfully 
be required to pay a peddler’s license or other license tax in this state 
for engaging in the business of taking such orders. 

In my judgment this question should be answered in the negative. 
In the case of Robbins vs. Shelby Taxing District , 120 U. S. 489, the 
Supreme Court of the United States reversed the judgment of the lower 
court, convicting the defendant of soliciting trade by use of samples 
of the firm for which he worked as a drummer, the firm having its place 
of business in Cincinnati and the conviction having taken place in the 
taxing district of Memphis, in the State of Tennessee, where he was 
engaged in taking the orders complained of. This reversal was placed 




62 


The Aluminum Cooking Utensil Company. 


upon the ground that he was engaged in interstate commerce and that 
no state or municipality had the right to levy or impose a license tax 
upon such business. This case has been frequently cited and followed 
by the Supreme Court of the United States as well as by numerous 
other courts, and it may be stated that the law as set forth in the 
opinion of said case is well settled. 

Your enclosures are herewith returned. 


Car-H 


Yours truly, 

C. A. Robbins. 




CHAPTER XV 


KANSAS. 

State Court Decisions. 

Ft. Scott vs. Pelton, 39 Kan. 766. 

State vs. Hickox , 64 id. 654. 

In this state several “WEAR-EVER” salesmen have been inter¬ 
fered with at various times, their cases being fully explained in the 
following correspondence: 


Beloit, Kansas, 

December 17, 1908. 


The Aluminum Cooking Utensil Co., 

Pittsburgh, Pa. 

Gentlemen: 

In reply to your letter in relation to the litigation between your 
agents, E. C. Beamer and Ray Tice, and the city of LINDSBORG 
and Thorstenberg, Mayor, and Walter Stead, Marshall. 

Beamer and Tice, two young men, students from Baker University, 
undertook to canvass the city of Lindsborg, Kansas, for your ware. 
They were arrested by the Marshall on an order of the Mayor, charged 
with a violation of a city ordinance which prohibited the soliciting of 
orders for merchandise of any kind without first obtaining a license. 
At your request I appeared as Attorney for the young men at their 
trial in the Police Court and argued that the ordinance was unconsti¬ 
tutional and wholly void, being in contravention of the Interstate 
clause of the Constitution of the United States. The Police Judge 
remarked that he was not a constitutional lawyer, and was not going 


64 


The Aluminum Cooking Utensil Company. 


to pass on the constitutional question and that he was going to hold 
for the city anyway. The young men were fined $10.00 and the costs 
of the prosecution. They were then informed by the Mayor, Mr. N. J. 
Thorstenberg, that if they would pay this fine they could finish their 
canvass of the city without further molestation, but if they failed to 
do so and attempted to solicit further orders they would be arrested. 
The young men, knowing that they were backed by your Company, 
refused to pay the license and appealed to the District Court. They 
then went before Judge Galle and secured an order, temporarily 
restraining Mr. Thorstenberg and his Marshall from interfering with 
them in any way from finishing the canvass of the city for your goods. 
The young men, although thay had lost considerable time, went ahead 
under the protection of this order and are now completing the canvass 
of the town. At the December term of the District Court of McPherson 
County, Judge Galle held that the city ordinance was unconstitutional 
and void, quashed the complainted appealed from the Police Court 
and made an order forever and perpetually enjoining and restraining 
the present City Mayor and Marshall and their successors from in any 
way hindering or interfering with Mr. E. C. Beamer and Ray E. Tice 
in soliciting orders for the goods, wares and merchandise of The Alumi¬ 
num Cooking Utensil Company, of Pittsburgh, Pa. The costs in both 
of the cases were assessed against the City Officials. 

Yours truly, 

(Signed) J. E. Tice, 

Attorney for Aluminum Cooking Utensil Co. 
i. e. Beamer and Tice. 


State of Kansas, County of McPherson, as 
In the District Court of said County and State. 

E. C. Beamer and Ray E. Tice, a minor, by J. E. Tice Plaintiff 

vs. 

N. J. Thorstenberg and Alex Wallerstedt, Defendants. 

JOURNAL ENTRY. 

And now towit: on this second day of December being a day of 
the regular December term of the said Court, the plaintiff appeared 
before their attorneys, J. E. Tice and Frank O. Johnson, the defendants 
not appearing. It is found and adjudged by the Court that the said 
defendants had been duly served by summons but that they had failed 
to answer, demur or otherwise plead to plaintiff’s petition filed herein, 
but were wholly in default. 




Briefs, Decisions and Opinions. 


65 


And thereupon this case came up for trial, the plaintiff waived a 
jury in open Court, and the case was submitted to the Court upon the 
pleadings and the evidence of the plaintiff and it was found and adjudged 
by the Court that all the allegations in the plaintiff’s petition contained 
are true. 

It is therefore considered, ordered, and adjudged by the Court 
that the said defendants, N. J. Thorstenberg and Alex Wallerstedt, 
and each of them, their agents or successors in office, and each of them 
and all other persons, be and they are hereby forever enjoined and 
restrained from molesting, interfering or in any way hindering or inter¬ 
fering with the said plaintiffs, E. C. Beamer and Ray E. Tice or either 
of them in soliciting or receiving orders in the city of Lindsborg, Kansas, 
for the goods, wares, or merchandise of The Aluminum Cooking Utensil 
Company, of Pittsburgh, Pa., or from molesting, intimidating, hinder¬ 
ing or in any way interfering with the said plaintiffs in delivering the 
goods, wares or merchandise of The Aluminum Cooking Utensil Com¬ 
pany in the said city of Lindsborg, Kansas, and that the said defendants 
and each of them, their agents or successors in office and all other 
persons be and are hereby forever enjoined and restrained from arrest¬ 
ing or attempting to arrest or from confining and attempting to confine 
in jail the said E. C. Beamer and Ray E. Tice or either of them for 
soliciting orders for and delivering goods, wares or merchandise of the 
said Aluminum Cooking Utensil Company in the City of Lindsborg, 
Kansas. 

It was further ordered and adjudged by the Court that the said 
defendants pay the cost of this action taxed at $10.00 for which let 
execution issue forthwith. 

P. J. Galle, 

Judge. 

city of McPherson, Kansas, vs. r. o. chaney. 

In Police Court of the City. 

McPherson, Kansas, 

August 26, 1909. 


Mr. G. B. Spath, Agent of 

The Aluminum Cooking Utensil Co. 

The charge was that Chaney violated a City ordinance by selling 
and delivering goods within the city without having either obtained a 
license or paid the fee therefor. 




66 


The Aluminum Cooking Utensil Company. 


It appeared that this Company was principal and he agent, the 
principal being at Pittsburgh, Pa., and having agents over the several 
states and counties therein selling its goods manufactured outside of 
Kansas, and that the property sold and delivered was not the property 
of Chaney, but that he was in the nature of a drummer. 

We for Chaney cited State vs. Hickox, 64 Kansas (Supreme 
Court), 650, and cases cited therein; also Robbins vs. Taxing District 
in Tennessee, 120 U. S. 694 bot. page 1 Brennan vs. Titusville 153 
U. S. 719, bot. page. 

We took the position that the argument was valid but that it 
could not apply in this case, for to apply was to interfere with Inter¬ 
state Commerce and to collect a license fee was to levy a burden on 
the occupation or business of carrying it on. That the state may levy 
burdens of all within the state, but not upon houses or businesses out¬ 
side of the state. 

A manufacturer of goods in the state can send an agent into 
another state to solicit orders for the products of the manufactory 
without paying to the latter state a tax for the privilege of trying to 
sell his goods. The police power of the state must give way to the 
inhibition of the Federal Constitution, or the powers of the U. S. 
Government created thereby. That a license tax required for the sale 
of goods under such condition, is in effect a tax upon the goods them¬ 
selves. A license tax imposed by a state upon an agent of a citizen or 
another state for the privilege of selling his goods in the former state 
is a direct burden on Interstate Commerce and therefore beyond the 
power of the State. 

The Police Judge held with us that the ordinance was valid but 
could not apply in cases like the above. Were the house and the agent 
both of Kansas then no Interstate Commerce would be involved and 
the license would have to be paid or be subject to a fine. 

The case was heard on its merits and Mr. Chaney was discharged 
at the cost of the City. 

Very sincerely yours, 

GRATTAN & GRATTAN, 
(Signed) G. F. Grattan. 

In the town of ONAGA, The Aluminum Cooking Utensil 
Company’s salesman, Mr. Ralph S. Hawkins, was arrested April 23, 
1912, for soliciting orders without having paid a license as required 
by the municipal ordinances. 




Briefs, Decisions and Opinions. 


67 


The conclusion is reported in the following letter: 

W. F. Challis. E. C . Bbookens. 

CHALLIS & BROOKENS, 

Attorneys at Law, 

Westmoreland, Kansas. 

September 10, 1912. 

The Aluminum Cooking Utensil Co., 

East St. Louis, Illinois. 

Gentlemen :— In re City of Onaga vs. R. S. Hawkins. 

This case was dismissed by the city at their cost.** 

We think the city will now be good to agents representing your 
company. 

Yours truly, 

CHALLIS & BROOKENS. 

In the town of Marion, The Aluminum Cooking Utensil Company’s 
salesmen, Messrs. Aaron Coleman and W. A. Huxman, were arrested 
August 14, 1913, for soliciting orders without having paid a license as 
required by the municipal ordinances. 

The conclusion is reported in the following letter. 

W. H. CARPENTER, 

Attorney at Law, 

Marion, Kansas. 


Marion, Kansas, August 21, 1913. 

Aluminum Cooking Utensil Co., 

East St. Louis, Ill. 

Gentlemen: 

I am pleased to report to you that both of your agents were dis¬ 
charged upon the hearing before the Police Court. 

Mr. Huxman’s partner was arrested last Saturday when he came 
in, after Mr. Huxman had been arrested, and we tried both cases 
yesterday, and the Court discharged the defendants basing his decision 
on the case of the City of Ft. Scott vs. Pelton, 39th Kansas, 674. 
Upon going through my library I found a large number of cases, all 
of which seemed to sustain our contentions, but the Court seemed to 
be controlled by the Kansas case; and said if it were not for the Kansas 
case, he would have convicted the fellows***************. 

Yours respectfully, 

W. H. Carpenter. 







68 


The Aluminum Cooking Utensil Company 


STATE OF KANSAS 

ttKVtIW 

OFFICE OF ATTORNEY-GENERAL 

TOPCKA. KANtAI 


JOMM m. OAWtON. ATTQS.S* OlAtWl 

V M, IUV1U. M«l * 

•. M •«rw«TU Mr ATTMdl><«MUM 
JAUMM F COLlKAN. OffKI 


Hon, J, W, c-reen. 

Dean 8chool of Law, 

Kansas University, 

Lawrence, Kansas. 

Jiy Dear Judge:- 


January 12, 1914, 


I have your letter of January 6 and am somewhat familiar 
with the situation which you describe. If the college student during his 
summer vacation is taking orders in good faith for a business house lo¬ 
cated in another state and sends those orders to the business house for 
approval, that business is interstate commerce under the Drummer Cases with 
which every lawyer is familiar. However, the village town marshals and 
other petty police officers and license collectors cannot be expected to be 
greatly versed in the law relating to interstate commerce, and I know that 
in their zeal they sometimes overstep the limit of their authority,especial¬ 
ly when they are dealing with the strangers within their gates. 

I don't know how this matter can be corrected, except by 
an occasional damage suit for false Imprisonment on the trumped-up charge 
of peddling without a license or something of that sort; nor do I see how 
the Attorney General can get into the matter where no specific case is in¬ 
volved, and no County Attorney or other public officer authorized to in¬ 
voke the opinion of the Attorney General requests our Interference. 

Yours with kind regards. 




Attorney General 





CHAPTER XVI. 


KENTUCKY. 
State Court Decisions. 


Commonwealth vs. Pearl Laundry Co 105 Ky. 259. 


CHAPTER XVII 


LOUISIANA. 

State Court Decisions. 

Simmons Hardware Co. vs. McGuire, 39 La. Ann., 848. 
McClellan vs. Pettigrew, 44 id. 356. 

Pegues vs. Ray, 50 id. 574. 



Ruffin G. Pleasant, 

Attorney General. 

ATTORNEY GENERAL’S OFFICE, 

Wylie M. Babbow, 

STATE OF LOUISIANA, 

Harry P. Gamble, 

Room 403, New Court Building. 

Assistant Attorney General. 

G. Adolph Gondran, 

Attorney in Charge 
of Criminal Docket. 


New Orleans, La., November 21, 1913. 


Hon. A. W. Connelly, 

Sheriff of Terrebonne Parish, 

Houma, La. 

Dear Sir: 

You write me that you have an inquiry from a gentleman who is 
contemplating putting canvassers in your parish, and who wishes to 
know whether they would be subject to the payment of a peddler’s 
license. In your letter, you say that he explains the method of carrying 
on his business as follows: 


Briefs, Decisions and Opinions. 


71 


“He is Agent for the Aluminum Cooking Utensil 
Company, a Pennsylvania corporation, having its prin¬ 
cipal office in the City of Pittsburg and its manufacturing 
plant at New Kensington, Penn., at which latter point 
alone it manufactures cookifig utensils, which are being 
sold in the state of Louisiana in the following manner: 

The Company in question employs traveling salesmen, 
who carry samples of its utensils and who solicit orders by 
house to house canvass. When orders are taken by the 
traveling salesmen they are forwarded to the office of the 
company at Pittsburg and the orders are filled from its 
manufacturing plant at New Kensington, Penn., and the 
goods shipped to the salesmen to be delivered to respective 
purchasers. No goods are delivered to the salesmen, 
except to fill orders he has actually taken, previously, and 
sent to the plant at New Kensington, Penn., to be filled. 

No stocks of goods are kept in States except in Penn¬ 
sylvania, Illinois and Oregon.” 

If he faithfully observes the foregoing method of doing business, 
I believe that he cannot be required to pay a license for the reason 
that he will be carrying on an interstate business, which is not subject 
to a license. Volume 21, page 794, A. & E. Enc. of Law lays down 
the following rule on the point raised: 

“ So long as goods imported into a State remain in the 
original packages, and are not mingled with the general 
mass of property in the State, their sale cannot be taxed 
or licensed. 

“A State statute imposing a tax or a license is invalid 
in so far as it applies to canvassers, sample agents, or 
commercial travelers who represent principals doing 
business outside of the State, and who solicits orders, by 
sample or otherwise, in the sale of goods which have not 
yet been brought into the State or have not been taken 
from the original package. Interstate commerce cannot 
be taxed at all. Nor can the license or tax be imposed 
directly upon the foreign principal.” 

On this point, our Supreme Court is in line with the ruling above 
laid down. In the case of J. T. McClellan, Tax Collector, vs. 
R. L. Pettigrew, 44 Ann., page 357, the Supreme Court of Louisiana 
says: 


“Whether the tax can be imposed, either directly on 
the goods introduced into the State, or by license on the 
party, who is entrusted with their sale, depends upon the 
fact, whether the goods have been incorporated into the 
general mass of property subject to taxation. 




72 


The Aluminum Cooking Utensil Company. 


“If the manufacturer in another State sends an agent 
to Louisiana to find a purchaser for his manufactured 
goods, still at the factory, and he takes orders and the 
goods are shipped direct to the Agent to be delivered to 
the purchaser, he is not liable to said tax imposed by said 
Act. It is immaterial whether the sale is perfected by 
delivery. The clause of the Constitution of the United 
States, which declares that Congress shall have the power 
to regulate commerce among the several states, extends 
to negotiations for the sale of manufactured goods 
solicited in another State. Therefore any license tax 
imposed upon an agent or solicitor for soliciting orders for 
said goods, by sample, is in violation of said Clause of the 
Constitution of the United States.” 


See also W. T. Pegues, Tax Collector, vs. O. P. Ray, 50 Ann., 
page 574; Henderson vs. Ortte, 14 La., page 523. 

The case of State vs. L. B. Price Mercantile Company, No. 20, 
247 of the Docket of the Supreme Court, lately decided, relates to 
another point and does not cover the question presented here. • 

Very truly yours, 


R. G. P.—S. B. 


R. G. Pleasant, 

Attorney General. 





CHAPTER XVIII. 


MARYLAND. 

U. S. Supreme Court Decisions. 

Brown vs, State of Maryland , 12 Wheat. 419 (1827). 
Corson vs, Maryland , 120 U. S. 502 (1887). 


CHAPTER XIX. 


MICHIGAN. 

U. S. Supreme Court Decisions. 

Walling vs. Michigan , 116 U. S. 446 (1886). 

State Court Decisions. 

Coit vs. Sutton , 102 Michigan 324. 

Wilcox Cordage Co. vs. Mosher , 114 id. 64. 

People vs. Bunker , 128 id. 163. 


Briefs, Decisions and Opinions 


75 



Attorney Generals Department 
Lansing 



September 8, 1913 , 


CHAMT ritlOWB 

«NBRI» • DO U* ►.#» » T * 


Mr. William C. Brown, 


Assistant Prosecuting Attorney, 


Lansing, Michigan. 


Lear Sir:- 


I have your communication of September Jth, which reads in 


part as follows; 

"The Aluminum Cooking Utensil Company is a Pennsylvania corporation 
having its principal office in the city of Pittsburg, and its manufactur¬ 
ing plant at Hew Kensington, Pa,, at which later point alone it manufactures 
oooking utensils which are being sold in the State of Michigan in the 
following manner: the company in question employes traveling salesmen who 
carry samples of its utensils and who solicit orders by a house to house 
canvass. When orders are received by the traveling icelemeni they are 
forwarded to the offiders of the company Pittsburg and the erdere are 
filled from its manufacturing plant at New Kensington, Pa., ard the 
goods shipped to the salesmen to he delivered to the respective purchasers. 
No goods are given to the salesmen except to fill orders actually re¬ 
ceived and the company carries no stock of goods in any of the states 
except Pennsylvania, as above, indicated and a stock of goods at East 
St. Louis, Ill., and Portland, Oregon. 

I would very much appreciate your official opinion as to whether or 
not the persone soliciting orders as above Indicated are protected 
by the Pederal Constitution to ths extent that they could not be compelled 
to take out a lloenee as a hauker or peddler under a state statute or a 
Village or City Ordinance." 


In reply thereto would eay, it is my opinion under the 


foregoing statement of facts, that persons who solicit orders do not come 
within the provisions of the hawkers and peddlers law and cannot be 


compelled to procure a Village or City Llocnse as a condition precedent 


to the right to solicit orders. The facts presented bring the case 
within the decision of our Supreme Court in People va. Bunker 128 Michigan 
160, which deoielon was subsequently approved in Prople vs. Stuart 
167 Mlohlgan 122 . 




Attorney General. 



I 


CHAPTER XX. 


MINNESOTA. 

In the city of DULUTH, The Aluminum Cooking Utensil Com¬ 
pany’s salesman, Mr. Joseph N. Fouchard, was arrested on September 
9, 1911, for soliciting orders without having paid a license as required 
by the municipal ordinances. 

The case is fully briefed in the following complaint and summary 
from the Court docket. 

State of Minnesota! MUNICIPAL COURT 

[■ ss. 

County of st. Louis) City of Duluth 

R. J. Gillon, being duly sworn, makes complaint to the above 
named Court, and says that on the 9th day of September, A. D., 
1911, at the city of Duluth, and within the corporate limits of said 
City of Duluth, in the County of St. Louis, and the State of Minnesota, 
one Joseph Fouchard, then and there being, did wrongfully, unlawfully 
and wilfully engage in the business of peddling and canvassing by then 
and there going about said city of Duluth offering for sale and can¬ 
vassing for the sale of personal property, without being licensed to 
carry on said business by said city of Duluth, contrary to an ordinance 
of the City of Duluth, in such case made and provided, and against 
the peace and dignity of the State of Minnesota; offender might be 
arrested and dealt with according to law. 

Wherefore, complainant prays that said offender may be arrested 
and dealt with according to law. 

R. J. Gillon. 

Sworn and subscribed to and complained of before me, at said 
City of Duluth, St. Louis County, Minnesota, this 12th day of 
September, A. D. 1911. 

W. J. Richeson, 

Deputy Clerk of the Municipal Court. 
By. 


(Seal) 


Deputy Clerk 



Briefs, Decisions and Opinions. 


77 


CLERK’S DOCKET 


The City of Duluth 


W. F. Dacey, attorney for plaintiff 
Peddling without a license 
E. J. Kenny, attorney for defendant 


vs. 

Joseph Fouchard 


September 9th, 1911: Defendant arrested by officer Gillon without 
a warrant. September 11th, 1911: Defendant being in court pleads 
not guilty. Trial set for 2 P. M., September 12th, 1911, at which 
time the defendant is ordered to be and appear in court, and he is 
released without bail. September 12th, 1911, 2 P. M.: Case called. 
Defendant in court. Complaint of R. J. Gillon, filed. Defendant 
waives the reading of the complaint and pleads not guilty. Trial set 
for 2 P. M. September 13th, 1911, at which time defendant is ordered 
to be and appear in court, and he is released. September 13th, 1911, 
11:30 A. M.: Case called. Defendant in court. R. J. Gillon called, 
sworn and testifies for the State. Recess taken until 2 P. M. to-day. 

September 13th, 1911, 2 P. M.: Case called. Defendant in court. 
State rests. Joseph Fouchard called, sworn and testifies for the defen¬ 
dant. Defendant rests. C. H. Troyer called, sworn and testifies in 
rebuttal for the State. State rests. Case continued until 2. P M., 
September 18th, 1911. 

September 18th, 1911, 2 P. M.: Case called. Defendant in court. 
The Court adjudges the defendant not guilty. Defendant discharged. 


J. G. Ross, Clerk of the Court. 
By M. S. Lloyd, Deputy. 


Minneapolis, Minn., July 11, 1913. 


Mr. C. L. Weeks, 

Assistant Attorney General, 
St. Paul, Minn. 


My Dear Sir :— 

I have a client who is Northwestern Sales Manager of The 
Aluminum Cooking Utensil Company, of New Kensington, Pa. 
This concern has a branch office and warehouse at East St. Louis, Ill., 
and also at Portland, Ore. A large part of its business is transacted 
through advertising salesmen who demonstrate and take orders for 
future delivery. The goods handled by these advertising salesmen 





78 


The Aluminum Cooking Utensil Company. 


are mostly specialties not sold at stores. None of the goods are sold 
except on orders for future delivery. These salesmen are largely 
college boys and their work is largely carried on during the summer 
months. 

My client informs me that there has been some difficulty 
at times, arising through officious village authorities arresting, 
or threatening to arrest, salesmen for selling goods without a peddler’s 
license, in other cases they are charged with being transient merchants 
and are subjected to various petty persecutions and annoyances. This 
condition has resulted in losing the services of good men who do not 
care to be classed as lawbreakers. It is true that these charges are not 
sustained but it puts the salesmen to much trouble and expense. 

These salesmen are clearly not subject to local ordinances 
for several reasons, but principally because of the fact that the 
work is held to be interstate commerce. An opinion from your 
office to the effect that these salesmen are not subject to local ordinances 
would serve to prevent much of the petty persecution. It would also 
serve to satisfy prospective salesmen that the work is not in violation 
of any law. I submit herewith a brief on the question prepared by the 
company’s attorneys, Gordon & Smith, of Pittsburgh, Pa. If it is 
possible for your office to issue an opinion on this matter the same 
would be greatly appreciated. Kindly address the same to The 
Aluminum Cooking Utensil Company, New Kensington, Pa., and send 
to my office. Thanking you for any courtesy in this matter, I remain, 

Very truly, 

R. M. Thompson. 


923 Metropolitan Bldg. 




Briefs, Decisions and Opinions 


79 



IYNOON A. SMITH 

»no««rr C CM CM At 


CLIFFORD L.HtCTOK 
ALEXANOCO l janes 
william J. STEVENSON 
C.LOUIS WEEKS 
ALONZO J.tOCtNTON 

• '«&•»<*» 0€a(»4* 


(DHftrc of tltr Attorney (Srurrai 


July 14 , 1913. 


Mr. R. U. Thompson, Esq., 

Attorney at Law, 

Minneapolis, Minnesota. 


Dear Sir:- 

In your letter of the 11th instant you state 
that the Aluminum Cooking Utensil Company is a Pennsylvania 
corporation having its principal office in the city of 
Pittsburg; that it is engaged in the business of selling 
aluminum cooking utensils to residents of this state in the 
following manner, to wit: 

That it employs persons having samples of the 
goods manufactured by it, to go from house to house in this 
state, and take orders for cooking utensils; that such orders 
are then mailed to the principal office of the company, where 
such orders are accepted and filled by shipping the utensils 
ordered, either direct to the purchaser or to the agent who 
took the orders, who himself then delivers the utensils and 
receives the pay therefor. 

.You state that in many instances the persons so 
taking orders in this state are prosecuted as being peddlers 
doing business without a license. You ask if under the laws 
of this state persons so taking orders are required to have 
a license under the various statutes and ordinances of this 
state regulating peddling and requiring peddlers to have a 
license. 


In answer to your inquiry I beg to advise you that 
it is the opinion of this department that persons taking orders 
and delivering the goods ordered in the manner stated , are en¬ 
gaged in Interstate commerce, and that such persons are not 
subject to the operation of laws of this state, or the ordinances 
of any city or municipality thereof, which purport to regulate 
the business of peddling. It is beyond the power of the state 
or any municipality thereof to impose any such burden upon inter¬ 
state business. 


Very truly yours. 


Assistant Attorney General. 


I-L ,1 










CHAPTER XXI 


MISSISSIPPI. 

State Court Decisions. 

Overton vs. Vicksburg, 70 Miss. 558. 
Richardson vs. State, 11 So. 934. 


CHAPTER XXII 


MISSOURI. 

U. S. Supreme Court Decisions. 

In re Houston , 47 Fed. 539 (C. C., W. D. Mo.—1891). 
Welton vs. State of Missouri , 91 U. S. 275 (1875). 


In the town of JOPLIN The Aluminum Cooking Utensil Company’s 
salesman, Mr. Charles A. Wylie, was arrested July 19, 1913, for solicit¬ 
ing orders without having paid a license as required by the municipal 
ordinances. 

The line of argument and conclusion is shown in the following 
extracts from letters of Edgar B. Chestnut. 

EDGAR B. CHESTNUT 
Attorney at Law 

422 Main Street, 

Joplin, Missouri. 

RWP-729 

July 30, 1913. 


The Aluminum Cooking Utensil Co., 
East St. Louis, Ill. 


re Charles A. Wylie. 


Gentlemen: 


Your letter of July 29th is before me. 

My further investigation of this case has strengthened my 
original opinion that Mr. Wylie’s transactions in Joplin constituted 
Interstate Commerce and in case of an adverse decision in the Police 
Court I think that on appeal to the Circuit Court that that Court being 


82 


The Aluminum Cooking Utensil Company. 


presided over by an able and experienced Judge would render a decision 
in your favor. I cannot reasonably contemplate a different result 
because to my mind the law has been made very clear in the opinion of 
United States Disrtict Judge Van Valkenburgh in the recent case of 
Jewel Tea Co. vs. Lees Summit reported in 198 Federal Reporter, 
page 537. 

I shall use my best endeavors to get a favorable decision in 
the Police Court and will await your instructions as to appeal in 
case a fine should be imposed on Mr. Wylie. 

Yours very truly, 

EBC-FM Edgar B. Chestnut. 

From letter of August 2nd: 

“The case of the City of Joplin vs. Chas. A. Wylie was tried today 
in Police Court. The Police Judge reserved his decision until Monday 
next. In my opinion the City failed utterly to make out a case against 
Mr. Wylie and I believe that the Police Judge is of the same opinion." 

From letter of August 4th: 

“Mr. Wylie has been discharged by the Police Judge and may now 
go about his work without fear of molestation by the city authorities. 
The fact that the Commerce Clause of the constitution is a shield 
against the operation of the City ordinance has been borne in upon the 
city authorities and the case is closed.” 

In the town of HAMILTON, The Aluminum Cooking Utensil 
Company’s salesman, Mr. Loftus H. Ward, was arrested July 29, 
1912, for soliciting orders without having paid a license as required by 
the municipal ordinances. 

The conclusion is reported in the following letter. 

WILLIAM McAFEE 
Lawyer. 

Hamilton, Mo. 


Hamilton, Missouri, August 10th, 1912. 

Gentlemen :— 

In re. LOFTUS H. WARD, Rem-731. 

Your dispatch as well as your letter of July 31st, 1912, were duly 
received. Your Mr. Loftus H. Ward called to see me and in due time 




Briefs, Decisions and Opinions. 


83 


I made an appointment to meet our City Attorney and Mayor, with 
regard to City License. 

This matter has been thoroughly tested in our State, and after 
considerable squabble with the city officials, I succeeded in convincing 
them that they had no case against your man Mr. Loftus H. Ward and 
he has been since following his occupation without hinderance. 

I am satisfied that with my efforts before the City Attorney and 
our Mayor, that there is no danger of any future trouble. 

Respectfully, 

Wm. McAfee. 


HARRY E. RANDEL 
Attorney and Counsellor at Law 

R. A. Long Building, 
Kansas City, Mo. 


January Twenty-Third, 
Nineteen Fourteen. 

Mr. J. H. Randolph, 

619 R. A. Long Building, 

Kansas City, Mo. 

Dear Sir :— 

I submit herewith a short brief on the question as to 
whether or not your salesman, representing the home office at New 
Kensington, Pa., and taking orders for Aluminum Cooking Utensils, 
which orders are sent in their original forms out of the state and for 
goods to be delivered in the future, are required to pay a peddlers’ license 
or transient merchant license, as required by the ordinances of many of 
the municipalities of this state. As I understand it no sale is made in 
this state; that the orders are accepted or rejected in another state; and 
that the goods ordered are located in another state and are shipped 
from there to fill the orders taken and accepted before. 

In the case of State vs. Looney in the 116 Mo. App. page 
592, we have an almost identical state of facts: Here an agent of a 
corporation having its place of business in another state took orders for 
unframed portraits, to be made at the corporation’s place of business, 
and left with each purchaser a memorandum of the agreement which 






84 


The Aluminum Cooking Utensil Company 


recited that a certain price should be paid for the portrait on delivery, 
and that while the purchaser was not obliged to take a frame, all 
portraits would be delivered in frames. Subsequently defendant deliv¬ 
ered the portraits as agent of the corporation and urged the purchasers 
to purchase the frames. THE COURT HELD that the transaction as 
to the portraits constituted inter-state commerce, so that defendant 
could not be required to take out a peddlers’ license but the transaction 
in regard to the frames did not constitute inter-state commerce. 

In the case of Jewell Tea Company vs. Lee’s Summit Mo., 
reported in the 189 Federal at page 280 we find another case in point: 
Here a merchant in Chicago employed an agent who solicited orders 
for merchandise in a city in Missouri and reported the orders. The 
merchant put up each article ordered in a package, and all the packages 
were shipped to the agent, who took the goods from the depot and deliv¬ 
ered them to the customer and collected the price. THE COURT 
HELD that the agent was not a “peddler” within the ordinance of the 
city imposing a license for selling goods from wagons; also that the 
enforcement of a municipal ordinance, void for interference with inter¬ 
state commerce, by criminal proceedings with frequent arrest and other 
arrests threatened will be enjoined. The court further said: In my 
opinion the ordinance is void, because it is in effect a burden on com¬ 
merce between the states. 

In the case of Brennan vs. City of Titusville, reported in 153 
United States Reports at page 289, the facts are very similar. In 
the opinion the Court said: A city ordinance which requires payment 
of a license tax for soliciting or taking orders for goods, books, paintings, 
wares or merchandise from persons other than manufacturers or licensed 
merchants, and which on its face declares the same to be a license for 
“general revenue purposes,” is not, in its application to an agent solic¬ 
iting for a non-resident manufacturer, a mere police regulation, simply 
inconveniencing one engaged in interstate commerce but is a direct 
burden on interstate commerce, and therefore invalid. 

Again in the case of Robbins vs. Taxing District of Shelby 
County, Tenn., we find the facts to be directly in point. In this case 
the court held that: A state cannot levy a tax or impose any other 
restriction upon the citizens or inhabitants of other states for selling or 
seeking to sell their goods in such state before they are introduced there¬ 
in. Also that: The negotiation of sales of goods which are in another 
state, for the purpose of introducing them into the state in which the 
negotiation is made, is interstate commerce. Such commerce is not 









Briefs, Decisions and Opinions. 


85 


subject to state taxation, even though there be no discrimination be¬ 
tween it and domestic commerce. 

I feel quite sure that the agents of the Aluminum Cooking 
Utensil Company when transacting business as you have outlined to 
me are not to be subject to the payment of “peddlers’ license’’ or on the 
ground that they are transient merchants, to be compelled to pay any 
license. 

Very truly yours, 

Harry E. Randel 

The following letter from Hon. Herbert S. Hadley, late Governor 
of Missouri and a former Attorney General of the same state, explains 
itself. 


LAW OFFICES 
HADLEY, COOPER & NEEL 

Suite 1215, 
Commerce Bldg., 
Kansas Citt, Mo, 

Herbert S. Hadley, 

Armwell L. Cooper, 

Ellison A. Neel, 

John S. Wright. 


May 9, 1914 

Mr. Geo. H. Beach, 

Lawrence, Kansas. 

Dear Sir :— 

I am in receipt of your letter of May 4th in reference to 
your proposed plan of soliciting orders in this State for sale of aluminum 
ware manufactured by the Aluminum Cooking Utensil Company of 
Pittsburgh, Pennsylvania. If the business you conduct in this State 
is the business of soliciting orders and transmitting the same to the 
office of the Company at Pittsburgh, Pennsylvania, such transactions 
would not constitute doing business in this State so as to make it nec¬ 
essary that either you or the Company should take out a license there¬ 
for. The Supreme Court and the Supreme Court of the United States 
have decided that such transactions are interstate commerce and can¬ 
not be interfered with or regulated by the laws of the United States. 

Very truly yours, 

(Signed) H. S. Hadley. 


HSH-AD 








CHAPTER XXIII 


NEBRASKA. 

State Court Decisions. 

Menke vs. State, 97 N. W. 1020. 


«4AM C MARTIN. A»*• •"rvCt mCRaw 
CeOftfrt W AYR|^.OtA»TVATTM».’N<»*J*CHAU 
F A A W K t .CO« e RTTJ ATTOt»rr C< Nf **. 

JOiCPMNC C^UH^HY. (T(N04JU^^ 


rtf^jeKr«$ka. 

LCftAl OCPARTM£MT 

Jflrarijln. Hov«aber 19, 1913. 


Mr. 11. A. Kali, 

Omaha. Neb. 


Sear Sir: 


You have stated to me that you are representing the Alumi¬ 
num Cooking Utensil Company, of Pittsburgh, Pennsylvania, and have 
submitted to me a statement showing the character of the business 
conducted by said company. You ask me whether this company,and the 
manner in which it conducts its business, should be subjected to the 
laws of the state of Nebraska relative to peddler's license, etc. 

It appears from your statement that said company has a manu¬ 
facturing plant at Hew Kensington, Pennsylvania, at which place it 
manufactures cooking utensils, which it sells in the various states 
of the Union; that the company employes traveling salesmen,who solicit 
in this state and others, and after securing orders forward them to 
your company at Pittsburgh, where the orders are filled and the goods 
.shipped to the salesmen in Nebraska, to be delivered to the respective 
purchasers; that no goods are sent to the salesmen except to fill orders 
actually received; and that the company carries no etock of goods in 
the state of Hebraska and has no delivery storehouse therein. 

In the case of Menke x» S tate . 70 Neb., 669, our supreme court 
has passed upon this question and held that transactions substantially 
identical with those described in your statement constitute interstate 
commerce within the meaning of the federal .constitution, and, hence, are 
not subject to state taxation or regulation. Our court hases its de¬ 
cision upon the opinion of the supreme court of the United States in 
case of Caldwell v. North Carolina. 187 U. S, 622. 

Of course, such transactions as are not subject to state taxa¬ 
tion or state regulation would not be subject to village or municipal 
regulation. 


tl' could not advise you on this question were it not for the 
fact that our court has already passed upon it, as the advice of this 
department is limited to state officers and to county attorneys on cer¬ 
tain questions. 


Youra very truly. 



Attorney General, 







CHAPTER XXIV 


NEVADA. 

State Court Decisions. 


Ex parte Rosenblatt, 19 Nev. 439. 


CHAPTER XXV, 


NEW JERSEY. 
State Court Decisions. 

Kolb vs. Boonton, 64 N. J. L. 163. 


CHAPTER XXVI. 


NORTH CAROLINA. 

U. S. Supreme Court Decisions. 

In re Spain, 47 Fed. 208 (C. C., E. D. N. C.—1891). 
Caldwell vs. North Carolina, 187 U. S. 622 (1903). 

Norfolk & Western Ry. Co. vs. Sims, 191 U. S. 441 (1903). 

State Court Decisions. 

State vs. Bracco, 103 N. C. 349. 

Wrought Iron Range Co. vs. Campen, 135 N. C. 506. 


r 


CHAPTER XXVII. 

NORTH DAKOTA. 
State Court Decisions. 

State vs. O'Connor , 5 N. D. 629. 


ANDREW HlLCfin. 

atVormcv 
Airftto rooto. 

C. f tOUNO. _ 


OFFICE OF ATTORNEY GENERAL 
BISMARCK 

October 15, 

19 13 . 


P. L. McVey, Esq., 

President of University of N, D., 
Grand Porks, N. D. 

Dear Sir: 


Your letter to the attorney general at hand in regard 
to University students soliciting orders for aluminum cooking 
utensils company of Pennsylvania, Under your statement, in 
my opinion a peddler's license is not required. Of course 
if one of them is arrested, he would have to employ an attorney 
to defend him, I do not, however, believe that any state's 
or city attorney would issue any warrant when the facts were 
made known to him. If a student soliciting orders is required 
to procure a license, then every commercial salesman in the 
state would have to procure license. The students are not 
peddlers, they are taking orders, and 1 do not believe there 
is any law that can interfere with them. 1 do not believe that 
the legislature has power to pass any law requiring them to 
take out license. 


YourB truly, /o 

■ 





Asst. Attorney General 


CHAPTER XXVIII. 


OHIO. 


In the town of CANAL DOVER, The Aluminum Cooking Utensil 
Company’s salesman, Mr. Simon A. Metzer, was arrested for soliciting 
orders without having paid a license as required by the municipal 
ordinances. 

The conclusion is reported in the following letter. 


ED. C. SEIKEL Office in the Vinton Block. 

Attorney at Law 

Abstractor of Titles and Notary Public 


Canal Dover, Ohio, Sept. 13, 1912. 

The Aluminum Cooking Utensil Co., 

New Kensington, Pa. 

Gentlemen :— 

In reply to your favor of the 10th inst., pertaining to your 
Mr. Metzer, I beg to advise that he called at my office sometime 
after I had mailed my former letter to you and from the facts given to 
me by him and the Mayor and Chief of Police and from an examination 
of the Statutes of Ohio and the decisions rendered by the Ohio Courts, 
I concluded that the Mayor had no authority to impose any fine on 
Mr. Metzer or to charge him any license fee for delivering merchan¬ 
dise on orders previously taken, and after briefing the Ohio Law and 
submitting the same to the Mayor and City Solicitor after several 
conferences with them, they finally agreed that the ordinance was void 


92 


The Aluminum Cooking Utensil Company 


and inoperative in so far as it conflicted with The Interstate Commerce 
Law and refunded to me, for Mr. Metzer, the $10.00 fine paid and 
$2.00, license fee, making a total of $12.00 and have agreed to permit 
your Agents to take orders for your products and to send such orders 
to you and upon receipt of the same to make deliveries without any 
further molestation.. 

I have spent considerable time examining and briefing the 
Ohio Law pertaining to said matter and have concluded to send 
you a written opinion with references to the Ohio Statutes and decisions, 
so that you may be able to use the same, if the question again arises 
anywhere in this State. 

Respectfully yours, 

Ed. C. Seikel. 


ED. C. SEIKEL, 

Attorney at Law. 

Abstractor of Titles and Notary Public. 


Canal Dover, Ohio, Sept. 13, 1912. 

The Aluminum Cooking Utensil Co., 

New Kensington, Pa. 

Gentlemen :— 

In reply to your favor of recent date, pertaining to the right 
of your Mr. Simon A. Metzer, to take orders in this City for 
products manufactured by you in the State of Pennsylvania and to 
send such orders to you to be filled in your state and shipped to him in 
this City to be delivered to such customers and to collect the proceeds 
thereof, will say that while this City has an ordinance which was passed 
years ago, when this City was still a Village and among other things 
provides, “That all persons who shall on the Street or travel from place 
to place about said Village to sell, bargain to sell or solicit orders for 
goods, wares or merchandise by retail shall purchase a license before 
being allowed ***shall pay not more than $15.00 nor less than $2.00 for 
each day**** Any person or persons found guilty of violating this 
ordinance shall upon conviction thereof, be fined in any sum not ex¬ 
ceeding $10.00, or be confined in the Village Prison from one to ten days, 
or both at the discretion of the Mayor.” 






Briefs, Decisions and Opinions. 


93 


Said ordinance is still in full force and in effect, but the 
same does not preclude your authorized Agent from taking orders and 
forwarding the same to you and making deliveries and collections the 
proceeds, as hereinbefore stated under the statutes and the decisions 
of the Courts of Ohio and other states and of the United States Courts, 
for the reasons hereinafter stated, I would suggest however that you 
place the name of the customer on each package of articles ordered by 
him in some permanent manner, so that it will be less difficult for the 
Agent to convince the local authorities, that the articles were shipped 
by you for delivery after the order was taken and for the further reason 
that some of the Courts hold that in order to be protected by The Inter¬ 
state Commerce Law, deliveries must be made in original packages; or 
all such packages can safely be combined in one or more shipping cases, 
consigned to your Agent for delivery. As you already have an able 
opinion from your local attorneys setting forth the decisions of the 
United States Courts, I will simply refer you to the Ohio Statutes and 
Ohio Decisions as follows: 

Section 3672, General Code of Ohio, after enumerating certain 
powers granted to municipal corporations in Ohio, has the following 
provision, “But no municipal corporation may require of the 
owner of any product of his own raising or the manufacturer of any 
article manufacturing by him, license to vend or sell in any way, by 
himself or Agent any such article or product.” 

Section 3676 of the General Code of Ohio, empowers muni¬ 
cipal corporations to license dealers and also provides as follows: 
“This section shall not apply to persons selling by sample only.” 
Under said sections no municipal corporation could charge your duly 
authorized Agent to take orders and deliver your products, as herein¬ 
before stated in the absence of any Interstate Commerce Law, but the 
Ohio Courts have recognized and applied the Interstate Commerce Law 
in numerous cases to similar circumstances and the most recently re¬ 
ported case in Ohio is the case entitled: In re Oscar Julius, decided 
in the May term 1904, of the Circuit Court of the Fifth Circuit of Ohio, 
composed of Judges Voorhees, Donahue and McCarthy. Judge Dona¬ 
hue is now a member of the Supreme Court of this State, same was 
heard on the application of Oscar Julius, for a Writ of Habeas Corpus, 
he having been arrested on a warrant issued by the Mayor of the City 
of Coshocton, Ohio, based upon an affidavit, charging among other 
things that he did violate the License Ordinance in said City to-wit: 

“By canvassing in the corporate limits of said City for orders 
for the copying and enlarging of pictures ******* to be done by 







94 The Aluminum Cooking Utensil Company. 


the Chicago Crayon Company, a corporation **** located at Chicago, 
Illinois, of which said Julius was an employee.” 

To which Affidavit the defendant demurred, which was 
over-ruled and exceptions taken and the defendant having entered a 
plea of not guilty and waived in writing, a trial by Jury, was tried and 
found guilty by the Mayor and was ordered to pay a fine of $5.00 and 
costs of prosecution taxed at $3.00 and stand committed to City prison, 
etc. 

Thereupon application was made for a Writ of Habeas 
Corpus and duly issued by one of the Judges of said Court at Chambers, 
returnable at the first day of its next term when the case was tried on 
an agreed statement of the facts, in substance the facts charged in the 
affidavit. 

The Court upon reviewing the facts and citing and commenting 
upon the leading cases, decided by the Federal Courts defining the 
Interstate Commerce Law and its application concluded as follows: 

“We are disposing of the ordinance as one that 
interferes with interstate commerce, and for this reason 
we hold that it is in violation of Section 8, of Article 1, 
of the Constitution of the United States. 

‘The conviction of the petitioner herein is wrong; 
the affidavit does not charge him with any act in violation 
of any law of the state or ordinance of the City, 
that could be enforced against him. The writ is allowed. 

The petitioner is dismissed from custody at the costs of 
the State. Petitioner discharged.’ ” 

Said proceeding was not carried to the Supreme Court of this 
State and consequently is considered as final until modified by a 
decision of the Supreme Court of this State. 

In case of Arnold vs. Yanders, found in Volume 56, at page 
417 of the Ohio Supreme Court Reports, the Court defined what 
constitutes interstate commerce and declared a statute void which re¬ 
quired a non-resident of the State to pay a license to sell convict-made 
goods, as being in conflict with section 8, or Article 1, of the Constitu- 
ion of the United States. 

The first Circuit Court of Ohio, in case of August Brunner vs. 
Harrison Village, reported in Vol. 15, Circuit Decisions, at page 
247, held a similar ordinance invalid, as being in restraint of 
trade, to-wit: 







Briefs, Decisions and Opinions. 


95 


“A municipal ordinance making it unlawful for 
any person while on the street or traveling from place to 
place about the village, to sell or solicit orders for goods 
and merchandise, without first procuring a license, is an 
intolerable interference with and in restraint of trade, 
and invalid.” 

The Court of Common Pleas in case of Burkhard vs. Columbus, 
reported in 17th Law Bulletin, at page 342, held that such ordin¬ 
ance in so far as it is applicable to goods made outside of the State, 
is void and a dealer compelled to pay a license fee, may recover back 
the same if paid under protest. 

The Circuit Court of Ohio in case of Toledo vs. Buechele, reported 
in 19th Ohio Circuit Report, at page 127, defined the rule under 
which money illegally collected could be recovered, which decision was 
affirmed by the Supreme Court of Ohio without report and entered in 
65th O. S. page 603. 

The same question was considered and decided by the Supreme 
Court of Ohio, in case of Mays against Cincinnati, reported in 
first Ohio State, page 268 and Stephan vs. Daniels, reported in 27th 
O. S., page 527. 

You will note from said statutes and said decisions, that no 
municipal corporation in Ohio, has power to pass or enforce any or¬ 
dinance requiring any person to pay a license, whether a resident or 
non-resident of Ohio, to take orders for merchandise manufactured 
within or without the State and all such ordinances are absolutely void 
and unenforcable. 

Trusting that the above mentioned Statutes and Decisions 
may be the means of avoiding payment of license fees by your 
Agents in other municipalities in this State, as effectively as in this 
City, and I remain, 

Respectfully yours, 

Ed. C. Seikel. 




CHAPTER XXIX. 


OKLAHOMA. 
State Court Decisions. 

Baxter vs. Thomas, 4 Okla. 605. 


BEBOUT & VOYLES, 

Attorneys Counsellors at Law, 

Vinita, Okla. 

February 26, 1912. 

The Aluminum Cooking Utensil Co., 

East St. Louis, Ill. 

Gentlemen: 

We have the pleasure in reporting to you that in the case 
of the City of Vinita vs. Geo. A. Nunn, in which the defendant 
Nunn was charged with doing business as a peddler contrary to an 
ordinance requiring peddlers and itinerant venders to pay a license, we 
secured an acquittal. 

We take the liberty of handing you herewith the benefit of our 
investigation in this case with the thought that it may be of value to 
your agents at other points. 

It is a well established rule of law that a person selling goods 
or soliciting orders for the same, the goods being without the 
state at the time the sale is made or the orders taken, cannot be sub¬ 
jected to a license tax for making such sale or taking the orders. His 
business is Interstate Commerce and not domestic and is not subject 
to municipal or state regulation. The Negotiation of sales of goods 
which are in another state for the purpose of introducing them into the 
state in which the negotiation is made is Interstate Commerce. 

120 U. S. 489; 156 U. S. 296; 187 U. S. 694. 


Briefs, Decisions and Opinions. 


97 


A state law is unconstitutional and void which requires a person 
to take out a license to carry on Interstate Commerce. 

117 U. S. 34; 120 U. S. 489; 127 U. S. 640; 

128 U. S. 129; 129 U. S. 141; 136 U. S. 104; 

136 U. S. 114; 141 U. S. 47; 135 U. S. 161; 

94 U. S. 238; 164 U. S. 650. 

A state can not levy a tax or impose any restriction upon the sale or 
the offer to sell goods in such state before they are introduced therein: 

120 U. S. 489; 136 U. S. 104. 

A tax upon the sale of goods or the offer to sell them before they 
are brought into the state is a tax on Interstate Commerce and void: 

120 U. S. 489; 191 U. S. 441; 121 U. S. 230; 

129 U. S. 141; 145 U. S. 1; 135 U. S. 161; 

153 U. S. 289; 125 U. S. 465; 181 U. S. 283; 

185 U. S. 27; 122 U. S. 326; 127 U. S. 640; 

128 U. S. 129; 136 U. S. 104; 91 U. S. 275; 

116 U. S. 446; 203 U. S. 507; 129 U. S. 141; 

187 U. S. 622. 

Interstate Commerce can not be taxed at all even though the 
same amount of tax should be laid on domestic commerce or that 
which is carried on solely within the state. 

15 Wallace 232; 120 U. S. 489. 

The cases distinguish between cases wherein the goods are 
manufactured without the state, shipped into the state and then 
sold and cases wherein the goods are manufactured without the state, 
sold or orders taken for sale, while the goods are yet without the state, 
and then shipped into the state and delivered. In the latter class of 
cases, the goods are Interstate and not subject to state or municipal 
regulation. 

The cases we cite will enable any of your agents to successfully 
resist the payment of license. 


Very truly yours, 

BEBOUT & VOYLES, 

(Signed) W. K. Voyles. 






CHAPTER XXX. 


OREGON. 

In this State the defense of interstate commerce cannot be used as 
the Company maintains a warehouse and shipping depot at Portland, 
in Multnomah County, from which shipments to all points within the 
State are made. However, municipal ordinances in this State requiring 
the payment of a license fee by canvassing salesmen are invalid in many 
particulars, as set out in the following brief: 

WILBUR & SPENCER & F. C. HOWELL, 

Attorneys at Law. 

Portland, Oregon, March 10, 1914. 

VALIDITY OF MUNICIPAL ORDINANCES IN OREGON 
REQUIRING LICENSES OF CANVASSERS WHO TAKE 
ORDERS FOR FUTURE DELIVERY. 

Municipal ordinances purporting to require a license fee from 
canvassers, who take orders for the future delivery of goods, may be 
invalid in one or more particulars. Consequently, whenever such a 
canvasser is threatened with arrest for failure to take out a license, the 
ordinance which imposes the license should be carefully examined with 
respect to the following points: 

I. Is the ordinance authorized by the municipal charter ? 

II. Is the ordinance directed against “hawkers and peddlers” 
only ? 

III. Is the ordinance directed against venders of a special class 
of goods ? 

IV. Does the ordinance itself give a special definition to the term 
“peddler?” 

V. Does the ordinance discriminate against certain individuals ? 

VI. Does the ordinance impose a reasonable fee ? 

1. When a license for regulation only is authorized. 

2. When a license for revenue in addition to regulation is 
authorized. 


Briefs, Decisions and Opinions. 


99 


1. IS THE ORDINANCE AUTHORIZED BY THE 
MUNICIPAL CHARTER? 

“The city has no inherent power to license any occupation, calling 
or profession, or to exact a fee from any one engaged therein, but such 
power must emanate from legislative authority plainly and unmistakably 
delegated; that is to say it must be found in the charter , either in express 
terms or by necessary implication from the nature of the grant.” 

Justice Wolverton in Lent vs. Portland, 42 Ore. 488. 

When Lent vs. Portland, supra, was decided the constitution of the 
State of Oregon permitted the granting of a municipal charter by special 
act of the legislature; but by a vote of the people on June 4th, 1906 and 
November 8th, 1912, the constitution was amended as follows: “Cor¬ 
porations may be formed under general laws, but shall not be created 
by the legislative assembly by special laws. The legislative assembly 
shall not enact, amend or repeal any charter or act of incorporation for 
any municipality or town. The legal voters of every city and town are 
hereby granted power to enact and amend their municipal charter, 
subject to the constitutional and criminal laws of the State of Oregon.” 
Laws of 1911, Page 10, amending Article II, Section 2 of the State 
Constitution. 

It will thus be seen that this amendment deprives the legislative 
assembly of all authority to enact, amend or repeal any charter of a 
city or town by special laws. 

Municipal charters now in force in Oregon may have been obtained 
in one of three ways, (a) By special act of the legislature prior to June 
4th, 1906. (b) Under the general incorporation act of 1893; (Chapter 

I of Title XXVI, L. O. L., as amended February 28, 1913, Laws of 1913, 
Page 689). (c) By vote of the people, as provided by the amendment 

to the State Constitution, Laws of 1911, Page 10. 

A municipal charter obtained as above may have since been 
amended by the legal voters of the municipality. To determine just 
what powers the council possesses, it is necessary to examine every 
part of the charter itself, and not rely upon the wording of the general 
incorporation act, or any acts of the legislature relating to the particular 
municipality. 

The power to license or tax “must be found in the charter” either 
in express words or by necessary or unmistakable implication. 




100 


The Aluminum Cooking Utensil Company. 


After the exact scope of the charter has been ascertained in this 
way, it should next be determined whether the objectionable ordinance 
falls exactly within the power conferred upon the council by the charter. 
Take for example a charter obtained under the general incorporation 
act of 1893, which provides that the mayor and council shall have the 
power to “license, regulate and control any lawful business.” 

It is apparent, of course, that an ordinance purporting to have been 
passed in pursuance of this authority, and in itself stating it was passed 
to “license, regulate, prohibit and suppress canvassing” would be 
invalid for the reason that the charter conferred no authority upon the 
council to “prohibit and suppress” canvassing. 

Dillon Mun. Cor. 5th Ed. 661-667. 


II. IS THE ORDINANCE DIRECTED AGAINST “HAWKERS 
AND PEDDLERS” ONLY ? 

“At common law and under the statutes which have been sustained 
concerning peddlers, they are such as travel from place to place, selling 

the goods carried about with them.not such as take 

orders for the delivery of goods to be shipped in the course of commerce.” 

Crenshaw vs. Arkansas, 227 U. S. 389. 

“It has never been understood either by the profession or the 
people that one who is ordinarily styled a “drummer,” that is one who 
sells to retail dealers or others by sample, is either a hawker or a peddler; 
and the same is true in respect to persons who canvass, taking orders 
for the future delivery of books or other objects. It is a fundamental 
canon of construction that the legislature must be presumed to have 
used these words in their known and accepted signification, and intended 
thereby to confer upon the city and village authorities power to license, 
regulate and prohibit only such callings and occupations as might fall 
within the terms employed in the act as thus known and understood. ” 

Emmons vs. Lewistown, 132 Ill., 380; 8 L. R. A. 328; 22 Am. St 
Rep. 540. 

The decisions almost unanimously support the principle stated in 
the two quotations above, that a canvasser who takes orders for future 
delivery and does not deliver as he sells is not a “peddler.” Of the 
many cases which support this doctrine, the following may be cited: 





Briefs, Decisions and Opinions. 


101 


State vs. Lee, 113 N. C. 681; 18 S. E. 713; 37 Am. St. Rep. 649. 

State vs. Morehead, 42 S. C. 211; 20 S. E. 544; 46 Am. St. Rep. 719; 
26 L. R. A. 585. 

Commonwealth vs. Farnum, 114 Mass. 267. 

Kennedy vs. People, 9 Colo. App. 490; 49 Pac. 373. 

The State law of 1909 with regard to “peddlers” (L. O. L. 4961), 
states specifically that for the purposes of that act. any one, whether 
acting for himself or another, who takes orders for delivery in the future 
by samples or catalogue, shall be considered a “peddler,” the same as 
one who travels from place to place and sells goods outright. It cannot 
be contended that the special definition, which this act gives the term 
“peddler,” should be given that term whenever it is employed in a 
municipal ordinance. Not only would such an application be repugnant 
to the ordinary rules of construction, but the act itself states that it 
shall not apply to cities and towns, which by their charter are authorized 
to license “peddlers,” or “hawkers,” or “itinerant venders.” 

Spaulding vs. McNary, 64 Ore. 491, holds that the act of 1909, 
relative to venders is unconstitutional in so far as it relates to agents 
soliciting orders to be filled by shipping goods from another State, but 
does not touch the question of the enlarged meaning of the term peddler. 

Therefore municipal ordinances which relate to “peddlers” or 
“hawkers” only, and require a license fee as a condition precedent 
to conducting their business, do not apply to an agent or salesman, who 
takes orders by sample or catalogue and who will deliver only such goods, 
as are previously ordered. Such persons are not “peddlers” or 
“hawkers,” where the ordinary meaning of the word is not legally 
defined or enlarged. 

The statute authorizing towns “to license, tax, regulate, suppress 
and prohibit peddlers, empowers them to exact a license as peddlers 
from such person only as can be termed such in signification of the word 
as there used; and hence an ordinance which attempts to enlarge such 
a signification is to that extent void. ” 

Kennedy vs. People, 49 Pac. 373. 

III. IS THE ORDINANCE DIRECTED AGAINST CERTAIN 
CLASSES OF GOODS? 

Municipal corporations are the creatures of statute or the people 
and can exercise only such powers as are expressly conferred upon them 
or as exist by necessary implication. The ordinances of a municipality 
can not go beyond the limits of its charter. 





102 


The Aluminum Cooking Utensil Company. 


In Standard Oil Co. vs. Swansom, 49 S. E.(Ga.) 262, it was held that a 
statute imposing a special tax upon traveling venders “of patent or 
proprietary medicines, special nostrums, jewelry, paper, soap, or other 
merchandise” did not embrace venders of oil. The Court construed 
“or other merchandise” to mean ejusdem generis with and not of a 
quality superior to or different from those specially enumerated. 

It is also held that tea and coffee are not provisions within the 
meaning of a statute prohibiting peddling without a license, but except¬ 
ing the sale of provisions from the operation of the act. 

Commonwealth vs. Caldwell , 76 N. E. (Mass.) 955. 

IV. DOES THE ORDINANCE ITSELF GIVE A SPECIAL 
DEFINITION TO THE TERM “PEDDLER” ? 

Municipalities sometimes attempt in license ordinances to give the 
term “peddler” a special definition. An ordinance of the City of 
Corvallis, Oregon, for example, defines the word as it is defined in the 
State Peddler Law (L. O. L. 4961), thus including canvassers who take 
orders for delivery in the future. In the absence, however, of an act 
of the legislature authorizing municipalities to place arbitrary definitions 
upon the term “peddler,” they must give the word its ordinary meaning 
in their ordinances. 

Davenport vs. Rice , 75 la. 74; 9 Am. St. Rep. 454. 

In this case the agent of a local merchant was arrested for soliciting 
orders without first taking out the license required by an ordinance 
which defined the term “peddler” in a special way. The Court held 
that this special definition was not valid, and said, “The soliciting of 
orders for goods by sample was in no sense peddling ***** 
The City Council has no power under the City charter to enact by 
ordinance ‘that soliciting orders for future delivery of goods shall be 
deemed and taken to be peddling under the meaning thereof’.” 

Even where the municipality apparently has authority to specify 
who shall and who shall not be regarded as peddlers, arbitrary and 
unusual definitions will not be tolerated. 

City of St. Paul vs. Briggs , 85 Minn. 290; 88 N. W. 984; 89 Am. St. 
Rep. 554. 

This is an instructive case. Under the charter of the City of St. 
Paul, the council was authorized to 11 define, restrain, and license 
hawkers, peddlers, etc A salesman who sold goods to retailers was 
arrested for refusing to take out a license required by an ordinance 
passed apparently in pursuance of the authority conferred by the 




Briefs, Decisions and Opinions. 


103 


charter in the words above quoted. Although the charter in this case 
specifically authorized the council to “define” hawkers and peddlers, 
the Court held: “The power to define the offense must be confined 
within reasonable bounds and limited to the generally accepted meaning 
of the law relating to that subject****************q , he exercise by 
municipal corporations of the delegated power to enact ordinances must 
be confined within the general principles of the law applicable to the 
subject of such ordinances.” 

It follows, therefore, that salesmen who take orders for future 
delivery only are not obliged to take out licenses under ordinances 
which attempt to say that a “canvasser” is a “peddler,” unless the 
charter itself clearly enlarges the meaning of the word. 

V. DOES THE ORDINANCE DISCRIMINATE AGAINST 
CERTAIN INDIVIDUALS? 

Municipal ordinances regarding canvassers and peddlers frequently 
specify that their provisions shall not apply to agents of local merchants, 
or to persons selling their own products by canvassing or peddling. 
Such ordinances, according to the prepondering weight of opinion in 
this and other States, can not be enforced. 

State vs. Wright, 53 Ore. 344. 

Ex Parte Frank, 52 Cal. 606; 28 Am. Rep. 642. 

City of Peoria vs. Gugenheim, 61 Ill. App. 374. 

Brooks vs. Mangan, 86 Mich. 576; 24 Am. St. Rep. 137; 49 N. W. 
633. 

In State vs. Wright, supra, an act (Laws of 1905, Page 339), provides 
that any peddler, hawker or itinerant vender who shall peddle, hawk or 
vend any stoves, ranges, wagons, carriages, buggies, carts, surreys or 
other kinds of four wheeled or two wheeled conveyances or fanning 
mills or similar classed wares or merchandise within such county without 
first having obtained a license therefor was held to be invalid, as being 
arbitrary and class limitation. Mr. Justice Bean in rendering the 
opinion of the Court says, “It is true a State may impose a tax, or 
require a license from persons engaged in certain classes of trades, but 
the classification must be on some reasonable basis, and the law when 
enacted must apply alike to all engaged in the business or occupation 
****************S Q> a i so> a i aw requiring a peddler’s license has been 
held to be void if it exempts certain favored individuals by reason of 
their residence, or the goods sold by them.” 




104 


The Aluminum Cooking Utensil Company. 


In support of the above statements the Court cites the following: 

Chaddock vs. Day, 75 Mich. 527; 42 N. W. 977; 4 L. R. A. 809, 
which held invalid an ordinance requiring a license of $10.00 per month 
from all persons selling meat on the streets in smaller pieces than a 
quarter of the animal. 

Commonwealth vs. Snyder, 182 Pa. 630; 38 Atl. 356, which held 
invalid an ordinance requiring a license for peddling in Perry County, 
Pennsylvania, but exempting peddlers dealing exclusively with 
merchants in that county, merchants having a local place of business 
therein and citizens of the county selling product of their own growth 
and manufacture. 

Sayre Borough vs. Phillips , 148 Pa. 482; 24 Atl. 76; 16 L. R. A. 49, 
which held invalid an ordinance requiring a license for peddling, but 
exempting all residents of the borough. 

State vs. Wagener , 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677, 
which held invalid an ordinance requiring a license of peddlers, but 
exempting manufacturers, farmers, etc., selling their own products. 

Ordinances which discriminate against non-residents of a munici¬ 
pality, as well as those which discriminate against non-residents of a 
State, have been held invalid. 

People vs. Jarvis , 46 N. Y., Supp. 596, 600. 

City of Saginaw vs. Circuit Judge , 106 Mich. 32. 

Braceville vs. Doherty , 30 Ill., App. 645-61. 

Lucas vs. City of McComb, 49 Ill., App. 60. 

Morgan vs. City of Orange , 50 N. J. L. 389; 13 Atl. 240. 

Muhlenbrink vs. Commissioners, 42 N. J. L. 364. 

Ex Parte Thornton, 12 Fed. 538. 

Mayor, etc. vs. Chasan, 79 Atl. 1058. 

Town of Pacific June. vs. Dyar, 19 N. W. 862. 

State vs. Williams, 73 S. E. 1000. 

Brooks vs. Mangan, 49 N. W. 633. 




Briefs, Decisions and Opinions. 


105 


VI. DOES THE ORDINANCE IMPOSE A REASONABLE FEE? 

The Courts hold there is a difference between the power to “license 
and regulate” and the power to license for revenue; that in the exercise 
of the power to license for revenue, a municipality may impose a higher 
fee than when exercising merely the power to “license and regulate;” 
but that in no case may an ordinance provide a prohibitive fee with 
respect to useful and harmless occupations. Each of these propositions 
should be considered more in detail. 

1. Authority to “license and regulate ” useful and harmless occupa¬ 
tions does not confer authority to license for revenue. 

“When a municipal corporation is given the power to license useful 
trades and occupations, it cannot use the license as a tax to raise revenue, 
nor is it authorized to prohibit entirely the exercise of the trade or 
occupation by an excessive license fee.” 

13 Am. and Eng. Enc. Law, 1st Ed., Page 532. 

“The taxing power is to be distinguished from the police power, 
the general nature of which has been before adverted to. The power to 
license and regulate particular branches of business or specified matters 
is usually a police power; but when license fees or exactions are plainly 
imposed for the sole or main purpose of revenue, they are, in effect, 
taxes. The authority to license and regulate various enumerated 
matters is very generally conferred upon the municipal councils, and 
there is, as we have seen in the former chapter, some difference of 
judicial opinion as to the extent of power thus conferred, particularly 
in reference to using it for purposes of revenue. Ordinarily, the mere 
power to license or to subject to police regulations, does not give the 
power to tax distinctly for revenue purposes; but it may give the power 
when such appears from the nature of the subject-matter, and upon the 
whole charter or enactment, to have been the legislative intent, but not 
otherwise. ” 

Dillon Mun. Cor. 5th Ed., Section 1408. 

“The objects attained by the exercise of the powers of taxation and 
of license not being one and the same thing, the power delegated to a 
municipality to tax will not confer authority to license. But it is the 
generally received doctrine that the power granted to a municipality 
to regulate or to prohibit, includes the power to license as a means to 
those ends.” 

25 Cyc., Page 602 (2). 







106 


The Aluminum Cooking Utensil Company. 


“Concerning useful trades and occupations, a distinction is to be 
observed between the power to “license” and the power to “tax.” 
In such cases the former right, unless such appears to have been the 
legislative intent, does not give the authority to prohibit, or to use the 
license as a mode of taxation with a view to revenue, but a reasonable 
fee for the license and the labor attending its issue may be charged.” 

1 Dillon Mun. Cor. 5th Ed., Section 661, Page 996. 

“As all delegated powers to tax are to be closely scanned and 
strictly construed, it would seem that when a power to license is given, 
the intendent must be that regulation is the object, unless there is 
something in the language of the grant, or in the circumstances under 
which it is made, indicating with sufficient certainty that the raising 
of revenue by means thereof was contemplated.” 

Cooley, Taxation, 3rd Ed., Page 1139. 

“A power to license should be used only for regulation, unless there 
is something in the language of the grant, or the circumstances of the 
case clearly indicating that it was also intended to be used for the purpose 
of revenue**************While the power to license may be inferred 
from the power to regulate, the power to tax cannot. ” 

In Re: Wan Yin, 22 Fed. 701. (The laundry license case.) 

“In the statute before us the language used is “to regulate” and 
“to license.” As we have seen, these words of themselves do not confer 
the right to tax or prohibit, and, no other words being used, the intend¬ 
ment is that regulation, merely, was the object.” 

People vs. Jarvis, 46 N. Y., Sup. 596, 599. 

It was held in State vs. Bean, 91 N. C. 554, that a power to license 
the carrying on of trades, etc., is a police power and does not confer 
power to use the license as a mode of raising revenue. To the same 
effect are the following cases: 

Vansant vs. Harlem Stage Co., 59 Md. 330. 

The Mayor, etc., vs. The Second Ave. R. R. Co., 32 N. Y., 261. 

The State vs. The Mayor, etc., of Hoboken, 33 N. J. L. 280. 

Muhlenbrink vs. Commissioners, 42 N. J. L. 464. 

Clark vs. New Brunswick, 43 N. J. L. 175. 

City of Saginaw vs. Circuit Judge, 106 Mich. 32. 

City of St. Louis vs. Boatmans Ins. & Trust Co., 47 Mo. 150. 




Briefs, Decisions and Opinions. 


107 


There is one Oregon case, Abraham vs. City of Roseburg, 55 Ore. 359, 
which may seem at first glance to be at variance with the principles 
and decisions cited above. This case involved the validity of an 
ordinance requiring attorneys to pay a license fee of $10.00 per year. 
The ordinance was passed in pursuance of the power conferred by the 
charter, to “ license and regulate all such callings, trades and occupations, 
which the public good may require to be licensed, and regulated, as are 
not prohibited by law. ” After referring to the decisions which support 
the view that a tax cannot be levied under a power to “license” and 
“regulate” the Court said: “Other courts and perhaps the most 
recent decisions hold that under a power to ‘license and regulate’ 
employments, the license may be used as a means of raising revenue.” 
And cited the following cases in support thereof: 

(a) Ex Parte , 52 Calif. 606; 28 Am. Rep. 642. This case involved 
the construction of a section of the charter containing the same words 
as were under consideration in the Roseburg case, “as the public good 
may require to be licensed,” and the Court held that these words 
supplementing the power to license and regulate, conferred the power 
to license for revenue. 

( b ) City of San Jose vs. San Jose and Santa Clara Railroad Co., 
53 Calif. 475. In this case the Court construed the section of a charter 
which authorized the. municipality “to fix the rates of license tax in 
addition to the power to ‘license and regulate’.” The Court rested its 
decision on the word “tax,” as indicating that a tax on the occupation 
was authorized, and not merely the power to regulate the business. 

(( c ) State vs. Citizens Bank of Louisiana, 52 La. Ann. 1086; 27 S. 
709, but this case has no bearing whatever on the question, for it does 
not dicuss at all the right of a municipality to raise revenue under a 
power to license and regulate. 

(< d) Fleetwood vs. Read, 21 Was. 547; 58 Pac. 665; 47 L. R. A. 205. 
In this case the Court construed a statute which authorized certain 
cities to “grant licenses for any lawful purpose.” It was held that the 
words, “for any lawful purpose,” supplementing the power to license, 
conferred the power to license for revenue. 

(e) Kingsley vs. Chicago, 124 Ill. 359; 16 N. E. 260. This case is 
squarely in accord with the above quotation for the decision in Abraham 
vs. City of Roseburg, but of all the cases cited, it is the only one which 
does support that statement. 





\ 

108 The Aluminum Cooking Utensil Company. 


It is hardly to be supposed that our Supreme Court intended in 
this case to run counter to the whole current of authority, and meant 
to say that the words “license and regulate,” without qualification, 
confer authority to license for revenue. What the Court did in this 
case was to hold that the words, “As the public good may require to 
be licensed,” as the qualifying phrase which conferred the authority 
to raise the tax. The Court said “The term public good is sufficiently 
broad enough to include the raising of revenue, if in the judgment of the 
council revenue is needed.” 

2. The license fee, under a hare power to license and regulate, is in 
the case of useful and harmless occupations, such an amount only as will 
compensate for issuing the license, and supervising the business which is 
licensed. 

“Where the grant is not made for revenue, but for regulation 
merely, a much narrower construction is to be applied. A fee for the 
license may still be exacted, but it must be such a fee only as will legiti¬ 
mately assist in the regulation and it should not exceed the necessary 
or probable expense of issuing the license and of inspecting and regulating 
the business which it covers. If the State intends to give broader 
authority, it is a reasonable inference that it will do so in unequivocal 
terms.” 

Cooley, Taxation, 3rd Ed., Page 1141. 

“ It is well settled that the amount of an occupation tax imposed 
in the exercise of the police power may include not only the cost of 
issuing a license, but also a reasonable compensation for the expense of 
supervising their licensed occupation, but whenever it is manifest that 
the amount of such tax imposed in the exercise of the police power is 
substantially in excess of a reasonable fee for issuing the license and of 
regulating the occupation to which it pertains or is virtually prohibitory, 
the act or ordinance imposing the tax is invalid.” 

25 Cyc. 611. 

“A fee may be required for a license issued merely as a means of 
regulation, but the amount must not be more than is necessary to cover 
the cost of issuing the license and the incidental expenses attending the 
regulation of the business.” 


In Re Wan Yin, 22 Fed. Rep. 701. 





Briefs, Decisions and Opinions. 


109 


“While the State may regulate all legitimate occupations, trades, 
etc., it cannot, under any pretended exercise of its police power, prohibit 
persons from pursuing such callings.” 

State vs. Hume , 52 Ore. 1. 

“A license fee is such a sum as will compensate for the expense of 
issuing and recording the license, and, when the license is issued for the 
purpose of securing police control over the matter licensed, such further 
sum will probably be incurred in inspecting and regulating such busi¬ 
ness.” 


People vs. Jarvis, 46 N. Y., Sup. 596. 

“The municipality, under the authority given it to license, had the 
right to impose such a charge as would cover, not only the necessary 
expenses of issuing it, but also the additional labor of officers, and other 
expenses imposed by the business, but nothing beyond this.” 

City of Ottumwa vs. Zekind, 95 la. 622. 

To the same effect is: 

Ash vs. People, 11 Mich. 347. 

State vs. Finch, 80 N. W. 856. 

City vs. Jacobs, 73 S. W. 1097. 

Inc. Town of Stamps vs. Burke , 104 S. W. 153. 

John Rapp vs. City of Kiel, 115 Pac. 651. 

Seattle vs. Deckner, 108 Pac. 1086. 

Gainer vs. Roll , 75 Atl. 179. 

3. Even under a power to tax, the municipality may not impose a 
license fee that is prohibitory or unduly burdensome on a useful and harm¬ 
less occupation. 

“A tax is laid for the double purpose of regulation and revenue 
must be grounded in both the police and taxing power; but the grant of 
a power to tax would not authorize the imposition of a burden in its 
nature and purpose prohibitory. 

Cooley, Taxation, Page 11. 





110 


The Aluminum Cooking Utensil Company. 


“If a revenue authority is conferred upon the municipality, the 
extent of the tax, when not limited by the grant itself, must be under¬ 
stood to be left to the judgment and discretion of the municipal govern¬ 
ment, to be determined in the usual mode in which its legislative 
authority is exercised; but the grant of authority to impose fees for the 
purpose of revenue would not warrant their being made so heavy as to be 
prohibitory, thereby defeating their purpose.” 

Cooley, Taxation, 3rd Ed;, Page 1140. 

“But the State could not, under such circumstances, impose a 
license tax beyond the necessities of the city, nor one so excessive as to 
prohibit or destroy the occupation or business upon which it is imposed." 

Ogden vs. Crossman, 17 Utah 66, 53 Pac. 985. 

It was held in Hirschfield vs. Dallas, 29 Tex. App. 242; 15 S. W. 124, 
that an ordinance requiring a license tax of $500.00 per year from 
ticket scalpers was invalid, because “the tax amounted to an absolute 
prohibition of a business, the pursuit of which it was beyond the power 
of the corporation to prohibit, the occupation not being per se injurious 
to the public.” 

To the same effect are, 

Morton vs. Mayor, 111 Ga. 162; 36 S. E. 627, 50 L. R. A. 485. 

Hagar vs. Walker, 128 Ky. 1; 15 L. R. A. (N. S.) 195. 

City of Lyons vs. Cooper, 39 Kan. 324; 18 Pac. 296. 

Caldwell vs. Lincoln, 19 Nebr. 569; 27 N. W. 647. 

Brooks Mangan, 49 N. W. 633. 

Chaddock vs. Day, 42 N. W. 977. 

Sipe, vs. Murphy, 31 N. E. 884. 

People vs. Wilson, 94 N. E. 141. 

People vs. Jenkins, 94 N. E. 1065. 

Iowa vs. Glassman, 136 N. W. 899. 

City of Louisville vs. Pooley, 124 S. W. 315. 

Ex Parte Eaglesfield, 180 Fed. 558. 




Briefs, Decisions and Opinions. 


Ill 


The following statement appears in 25 Cyc. 612: “The act 
imposing the license tax is regarded as discretionary and not subject 
to review if it is enacted in the exercise of taxing power or in the exercise 
of the power to prohibit.” 

The apparent contradiction between the above and the authorities 
quoted is explained by the writer’s failure to distinguish between 
occupations which are harmful per se and those of a different character. 
Practically all the cases he cites in support of his statement involve 
ordinances which relate to the liquor traffic, and so far as the statement 
refers to business of that nature, it is correct. It is incorrect, however 
with respect to occupations of a useful or harmless nature, as is evidenced 
by two cases of a different character, which he seems to have cited 
unwittingly, ( Hirschfield vs. Dallas , and Ogden vs. Crossman, quoted 
above), for these cases flatly contradict the doctrines stated in the text. 

Even when the charter contains an express power to prohibit, a 
prohibitive license tax cannot be imposed on useful and harmless occupa¬ 
tions. Such power is subject to limitation, and can be literally exercised 
only in respect to those callings more or less opposed to the public good, 
liquor selling, gaming devices, etc. 

Sipe vs. Murphy, 49 Ohio St. 536; 31 N. E. 884. 

City of Carrolton vs. Bazette, 159 Ill. 284-42, N. E. 837; 31 L. R. A. 

522. 


It follows from the above that before we can determine whether or 
not the fee imposed by any particular license ordinance is unreasonable, 
we must first ascertain from the charter whether the municipality is 
authorized merely to license and regulate, or whether a power to tax is 
conferred expressly or by necessary implication. When considering 
this question, all parts of the charter must be carefully examined, for 
the taxing power apparently withheld in what seems the proper section 
for it, may be conferred in another section. 

If power to license and regulate only is conferred, the particular 
ordinances should be tested by the principles stated in 2 above. What 
is a reasonable fee under these principles varies with the circumstances 
of each case. In the famous laundry case above cited, in Re. Wan Yin, 
Judge Deady held that a fee of $5.00 per quarter for laundries in the 
City of Portland, was too high, and expressed the opinion that $1.00 
per quarter would be ample. In State vs. Bean, 91 N. C. 554, a fee of 
$3.00 per month from butchers was declared too high. 





112 


The Aluminum Cooking Utensil Company. 


If power to license for revenue is conferred, a larger fee may be 
imposed; but it must be reasonable, fair and not in restraint of trade. 

Dillon—Mun. Cor. 5th Ed., Sections 592-594. 

The principles stated in 3 above apply in this instance and the 
ordinance can be nullified if it practically prohibits a useful or harmless 
occupation. In the case of salesmen taking orders for future delivery 
any ordinance imposing a fee of more than SI.00 per week doubtless 
would be declared invalid by the courts. If in a case of this kind the 
jury finds the amount of the license fee unreasonable, neither the Court 
nor the jury can fix a smaller fee, which might be regarded as reasonable, 
for the ordinance imposing the fee is void. 

Postal Telegraph & Cable Co. vs. New Hope , 192 U. S. 65. 

The distinction between occupations which are harmful per se 
and those of a useful or at least harmless character must be kept 
constantly in mind. If this distinction is overlooked, the cases cited 
by opposing counsel in line with the above quotation from 25 Cyc. 612 
will assume an importance which they do not possess. The authorities 
are uniform in holding that municipalities may impose a prohibitive 
fee on occupations of that character, either under a power to prohibit 
or under a mere power to tax. It is different with respect to occupa¬ 
tions of a useful or harmless character, and it is doubtful whether there 
is a single text writer, or a single strong decision that can be cited in 
support of the contention that a prohibitive license tax can be imposed 
on such occupations. 

There is a distinction also between the right of a municipality to 
impose a high license tax on occupations of a useful or harmless character 
and its right to impose such a tax on persons engaged in furnishing 
amusements, exhibitions, etc. “ Respecting amusements, exhibits, etc., 
the authority of the corporation under the power to license has been 
regarded as greater than when the same word is applied to trades and 
occupations.” First Dillon Mun. Cor. 5th Ed., Section 661. Con¬ 
sequently we must be on our guard against citations from cases relating 
to amusements and exhibitions. 

Respectfully submitted, 

Wilbur & Spencer & F. C. Howell, 

Attorneys. 




CHAPTER XXXI 


PENNSYLVANIA. 


In this State the defense of interstate commerce cannot be used as 
the Company maintains a warehouse and shipping depot at New 
Kensington, in Westmoreland County, from which shipments to all 
points within the State are made. However, municipal ordinances 
in this State requiring the payment of a license fee by canvassing 
salesmen are invalid in many particulars, as set out in the following 
brief. 

BRIEF OF AUTHORITIES EXEMPTING SALESMEN OF THE 
ALUMINUM COOKING UTENSIL COMPANY FROM PAY= 
MENT OF LICENSE TAXES IMPOSED BY BOROUGHS 
AND MUNCIPALITIES OF THE STATE OF 
PENNSYLVANIA. 

Submitted April 28, 1913, 
by 

GORDON & SMITH, 

Frick Building Annex, Pittsburgh, Pa., 

General Counsel for 

THE ALUMINUM COOKING UTENSIL CO. 

The attempt to impose license taxes on the Company’s salesmen 
in this State may be made under a number of Acts of Assembly, among 
which may be mentioned: 

Act of April 22, 1846, p 11, P. L. 489. 

Act of April 3, 1851, p 2, Clause XI, P. L. 320. 

Act of February 27, 1868, p 1, P. L. 43. 

Act of March 17, 1883, P. L. 31. 


114 


The Aluminum Cooking Utensil Company. 


Act of May 2, 1899, P. L. 159. 

Act of March 7, 1901, Article 19, p 3, Clause IV,' P. L. 40. 

Act of May 16, 1901, p 6, P. L. 228. 

The acts which will probably cause the greatest difficulty are those 
which empower cities and boroughs to impose license taxes in certain 
instances. The first inquiries to be made in such a case are obviously 
(1) whether the ordinance under which the tax is imposed, on its proper 
construction, covers the employees of this Company; and if so, (2) 
whether as so construed the ordinance comes within the grant of power 
made by the legislature to the municipality. There is no doubt that 
a tax may lawfully be imposed on the Company’s salesmen by a muni¬ 
cipal ordinance satisfying these conditions. On this proposition the 
following cases may be of interest: 

Warren vs. Geer, 117 Pa. 207 (1887). 

Millerstown vs. Bell, 123 Pa. 151 (1889). 

Titusville vs. Brennan, 143 Pa. 642 (1891). 

Commonwealth vs. Harmel, 166 Pa. 89 (1895). 

North Wales Borough vs. Brownback, 10 Pa. Superior Ct. 227 (1899). 

Affirmed in Brownback vs. North Wales Borough, 194 Pa., 609 (1900). 

New Castle vs. Cutler, 15 Pa. Superior Ct. 612 (1901). 

Mechanicsburg Borough vs. Koons, 18 Pa. Superior Ct., 131 (1901). 

Kittanning Borough vs. Natural Gas Co., 26 Pa. Superior Ct. 355 
(1904). 

Edgewood Borough vs. Scott, 29 Pa. Superior Ct. 156 (1905). 

Titusville vs. Gahan, 34 Pa. Superior Ct. 613 (1907). 

Mahoney City Boro. vs. Hersker, 40 Pa. Superior Ct. 50 (1909). 

But though an ordinance may appear to come within the legislative 
grant of power, it may not in reality do so and may be invalid. Thus, 
an ordinance cannot be enforced if it makes an unjust discrimination, 
e. g., one in favor of residents of the municipality. 

Sayre Boro. vs. Phillips, 148 Pa. 482 (1892). 

Shamokin Boro. vs. Flannigan, 156 Pa. 43 (1893). 

Where the passing of the ordinance is not directed by the legislature, 
but is merely allowed (which is the case with most of these ordinances), 




Briefs, Decisions and Opinions. 


115 


the ordinance is invalid unless it is reasonable. This principle is 
recognized in many of the cases already cited, and had been applied to 
ordinances of all kinds by other Pennsylvania cases. 

Commissioners vs. Gas Co., 12 Pa. 318 (1849). 

Fisher vs. Harrisburg, 2 Grant (Pa.) 290 (1854). 

O'Maley vs. Boro, of Freeport, 96 Pa. 24 (1880). 

Kneedler vs. Boro, of Norristown, 100 Pa. 368 (1882). 

Scranton City vs. Straff, 28 Pa. Superior Ct. 258 (1905). 

Ligonier Valley R. R. Co. vs. Latrobe Boro., 216 Pa. 221 (1907). 

See also 

Dillon on Municipal Corporation, 5th Ed., Vol. 2, Pages 589-602 
and notes. 

From an examination of the cases, however, it is believed that the 
courts will not hold an ordinance imposing a license tax in accordance 
with the literal meaning of an Act of Assembly invalid merely on the 
ground of unreasonableness except in an extreme case. 

What might not be justified as a tax for revenue has sometimes been 
upheld by the Pennsylvania courts as an exercise of the police power. 
While the United States Supreme Court has held that the taxation of 
canvassing in interstate commerce is a violation of the commerce clause 
of the Federal Constitution, it does not follow that it might not hold 
such a tax a proper exercise of the police power when the only question 
is whether it amounts to a deprivation of property without due process 
of law in violation of the Fourteenth Amendment. 


While the defense of “Interstate Commerce” cannot be set up in 
Pennsylvania, the following decisions are cited simply as a matter of 
interest. 

U. S. Supreme Court Decisions. 

In re Nichols, 48 Fed. 164 (C. C., W. D. Pa.—1891). 

In re Tyerman, 48 Fed. 167 (C. C., W. D. Pa.—1891). 

Brennan vs. Titusville, 153 U. S. 289 (1894). 

*Rearick vs. Pennsylvania, 203 U. S. 507 (1906). 

State Court Decisions. 

Mearshon vs. Pottsville Lumber Co., 187 Pa. 16. 







CHAPTER XXXII. 


RHODE ISLAND. 


EDWARDS & ANGELL, 

Counsellors at Law. 170 Westminster Street, 

Providence, R. I. 


December 23, 1913. 


Aluminum Cooking Utensil Co., 

Pittsburgh, Pa. 

Dear Sirs: 

On December 22, 1913, at your request, we interviewed Herbert 
A. Rice, Attorney General for the State of Rhode Island, for the purpose 
of obtaining his opinion as to whether or not your agents are subject 
to the provisions of our statutes requiring Itinerant Venders or Hawkers 
and Peddlers to procure a license. (Gen. Laws of R. I. 1909, Chapts. 
191 and 192). 

We stated to Mr. Rice that your Company is a Pennsylvania 
corporation having its main office in Pittsburgh and its only factory 
at New Kensington, Pa., where it manufactures cooking utensils; that 
it proposes to employ salesmen who shall travel through Rhode Island 
carrying samples of its products and soliciting orders for the same; 
that orders so received are to be forwarded to your Pittsburgh office 
and filled by shipping the products ordered direct from the factory to 
the salesman who is to deliver to the consumer; that the salesmen are 
to carry no goods except as samples and for the purpose of filling orders 
already received as aforesaid; and that neither your Company nor said 
agents is to maintain any stock of goods nor occupy any office or building 
in Rhode Island. 


Briefs, Decisions and Opinions. 


117 


In conferring with Mr. Rice as to the effect of the statutes above 
referred to, we particularly called his attention to the following points: 

(1) The statute relating to Itinerant Venders Specifically excepts 
agents such as yours from its operation. We pointed out to Mr. Rice 
two sections of this statute which plainly indicate this result. Under 
either one of these sections there can be little doubt that your agents 
are fully protected so far as this statute is concerned. One section 
provides that “the provisions of this chapter shall not apply********** 
to bona fide scales of goods, wares and merchandise by sample for future 
delivery **********.” (Gen. Laws of R. I. 1909, Chap. 192, Sec. 15.) 
Moreover, even in the absence of this specific language another section 
of the same statute limits the meaning of the phrase' ‘ Itinerant Venders ” 
to persons who “engage in a temporary and transient business in this 
State********** flw ^**********f or the purposes of carrying on such 
business hire, lease or occupy any building or structure for the exhibition 
and sale Q f**********goods, .wares and merchandise. ” (Gen. Laws of 
R. I. 1909, Chap. 192, Sec. 14.) We pointed out that the business of 
your agents in soliciting orders by sample was not necessarily a “tem¬ 
porary or transient business,” that neither your Company nor said 
agents proposed to “hire, lease or occupy any building or structure” 
in this State and that, hence, by the definition of the statute itself, they 
were plainly not subject to its requirements. 

(2) The statute relating to Hawkers and Peddlers does not apply 
where agents (like your agents ) merely solicit orders for goods. In support 
of this construction we called Mr. Rice’s attention to the fact that this 
statute purports to apply only to one “who shall as a Hawker or Peddler 
sell or offer for sale or carry through or into any town in the State, to be 
sold or bartered from packs, packages, horses, carts or other vehicles 
or in any other way**********goods, wares or merchandise********.” 
(Gen. Laws of R. I. 1909, Chap. 191, Sec. 1); and that obviously this 
language has no application to persons who neither sell goods nor offer 
them for sale nor carry them for sale, but who merely take orders for 
goods according to sample. 

(3) If said statutes, as above pointed out, did not specifically except 
your agents from its operation, they would be unconstitutional as amounting 
to an improper interference with interstate commerce. We showed 
Mr. Rice the numerous decisions of the Supreme Court of the United 
States whereby it has been repeatedly decided that statutes similar to 
those in force in Rhode Island would be unconstitutional if construed 
to apply to interstate commerce such as you propose to carry on through 
your agents. 




118 


The Aluminum Cooking Utensil Company. 


The Attorney General examined with us very carefully the various 
provisions of the above mentioned statutes of this State and the authori¬ 
ties referred to. While he preferred not to be actually quoted in any 
way, nevertheless we gained the undoubted impression from our inter¬ 
view with him that he fully agrees with us that if you hire agents in 
this State and they conduct business as outlined above without first 
obtaining a license, they will not be liable as having violated the 
requirements of the statutes above named. 

Very truly yours, 

Edwards & Angell, 

Eliot G. Parkhurst. 




CHAPTER XXXIII. 


SOUTH CAROLINA. 


In the town of CLIO, The Aluminum Cooking Utensil Company’s 
salesman, Mr. E. L. Warren, was arrested for soliciting orders without 
having paid a license as required by the municipal ordinances. 

The following judgment and court order gives the outcome: 

State of South Carolina, \ 

County of Marlborough, ) 

-f Indictment for peddling without a 

Town of Clio / Municipal License. 

against 1 

E. L. Warren. J 

The above stated case was heard by me on appeal from the Munici¬ 
pal Court of the Town of Clio and after a full hearing and argument by 
J. K. Owens, Esq., for the Town of Clio and Geo. W. Brown, Esq., for 
the Defendant Appellant, I am satisfied that the Defendant, E. L. 
Warren was not engaged in hawking or peddling goods or wares, 
contrary to the Statute known as the hawker and peddler act or con¬ 
trary to the license ordinance of the Municipalities in this State, but 
upon the contrary it appears that the defendant was merely soliciting 
orders for the future delivery of goods and wares, which at the time of 
the solicitation of the orders therefor were not within the State of South 
Carolina, but were upon such orders subsequently shipped into the 
State of South Carolina from the State of Pennsylvania by the 
Aluminum Cooking Utensil Company, an established business house or 
factory located at New Kensington, Pennsylvania, and then by the said 
defendant delivered to the several parties from whom he had taken 
said orders and consequently the said goods and wares were not the 
subject of legislative control upon the part of the State of South Carolina. 
The defendant was in no sense a hawker or peddler, the testimony 
showing that he neither carried around from place to place for the 



120 


The Aluminum Cooking Utensil Company. 


purpose of selling or offering for sale such goods and wares, nor did he 
sell or offer to sell the same, and the testimony further shows that the 
said defendant was engaged in an interstate transaction and is therefore 
protected by the laws and regulations of interstate commerce and 
consequently he cannot be made to pay license for such interstate 
business. 

Therefore it is ordered, on motion of Geo. W. Brown, defendant’s 
Attorney, that so far as the notice and grounds of appeal of the defend¬ 
ant, to the ruling and judgment of the Mayor of Clio raised or point 
out errors made by the said Mayor, contrary to and inconsistent with 
this order and the findings herein made the same be and hereby are 
sustained. 

It is further ordered that the judgment and sentence of the said 
Mayor made and pronounced against the said Defendant be and the 
same are hereby overruled and set aside, the prosecutions heretofore 
commenced against the defendant be dismissed and the cash bond 
heretofore deposited by the defendant in lieu of recognizance, pending 
hearing of this appeal, be refunded to him or to his Attorney. 

Jno. S. Wilson, 

Presiding Judge. 

March 14, 1912. 

State of South Carolina, 

County of Marlboro. 

I, J. A. Drake, Clerk Court C. P—G. S. for Marlboro County in 
the State aforesaid, do hereby certify that the above is a true and 
correct copy of an order now on file in this office. 

Given under my hand and official seal at Bennettsville, S. C., March 14, 

1912. 

J. A. Drake, 

Clerk. 

(Seal). 




CHAPTER XXXIV 


SOUTH DAKOTA. 


State Court Decisions. 
State vs. Rankin , 11 S. D. 144. 


CHAPTER XXXV. 


TENNESSEE. 

U. S. Supreme Court Decisions. 

Robbins vs. Shelby County Taxing District, 120 U. S. 489 (1887). 
Stockard vs. Morgan, 185 U. S. 27 (1902). 

State Court Decisions. 

Hurford vs. State, 91 Tenn. 669. 

State vs. Scott, 98 id. 254. 


Law Office 

LINDSAY, YOUNG & DONALDSON, 

East Tenn. Nat’l Bank Bldg., 
Knoxville, Tenn. 

H. B. Lindsay, 

Rob’t S. Young, 

W. J. Donaldson, 

E. G. Stooksbuby, 


July 8, 1914. 

Aluminum Cooking Utensil Co., 

New Kensington, Pa. 

Gentlemen: 

RE CANVASSERS’ LICENSES IN TENNESSEE. 

Replying to your letter of the 2d instant, making further inquiry 
as to the liability of canvassers to a privilege or license tax for soliciting 
orders for your goods, located outside of the State of Tennessee, to be 
shipped into the said state and delivered by the canvasser, as your 
agent, we have to say: 


Briefs, Decisions and Opinions. 


123 


The canvasser engaged in this work, as your agent, is not liable 
for a state privilege or license tax because imposition of such a tax 
would be a burden upon interstate commerce and in violation of the 
Federal Constitution. 

In the case of Robbins vs. Taxing District, reported in 13 Lea 
(81 Tenn.) at pages 303 to 310, the Supreme Court of Tennessee, held 
contrary to the opinion expressed above, but this very case was taken 
to the Supreme Court of the United States by a Writ of Error, and the 
latter court, speaking through Justice Bradley, reversed the decision 
of the Tennessee Supreme Court, holding that the negotiation for sale 
of goods, which are in another state, for the purpose of introducing 
them into the state in which the negotiation is made, is interstate 
commerce; that such commerce is not subject to state taxation, and 
that the state cannot levy a tax or impose any other restriction upon 
the citizens or inhabitants of other states, for selling or seeking to sell 
their goods in such state. This was a case where the Taxing District 
of Memphis, Tennessee, sought to compel a traveling salesman to pay 
a tax for offering for sale goods belonging to his non-resident principal, 
located in a different state. Your attention is especially directed to 
this case which is settled by the court of last resort having jurisdiction 
of such a question: Robbins vs. Taxing District of Shelby County, Tenn., 
120 U. S. Supreme Court Reports, pages 489 et seq. 

In the case of Hurford vs. State, reported in 7 Pickle (91 Tenn.), 
at pages 669 to 676, the Supreme Court of Tennessee expressly adopted 
and followed the decision of the U. S. Supreme Court in the case of 
Robbins vs. Taxing District. In this latter case Judge Lurton, who has 
since been elevated to the position of associate Justice of the Federal 
Supreme Court, held that a State Revenue Act imposing privilege tax 
upon persons selling goods to consumers by sample, and declaring it a 
misdemeanor to do so without payment of this tax, is invalid, as an 
unlawful regulation of interstate commerce, in so far as it shall be 
applied to persons, not residents of the state, who, as agents or drummers 
take orders in this state from consumers for sale of goods of their non¬ 
resident principal situated outside of the state—the orders to be sent 
to such non-resident seller, and the goods forwarded by him, in com¬ 
pliance with their terms, to the buyer. 

In the case above referred to the Supreme Court of Tennessee said: 

“In all its substantial particulars, this case is 
identical with Robbins vs. Taxing District, 13 Lea, 303. 

This Court then held that the tax on drummers was not 
a regulation of commerce between the States, although 



124 


The Aluminum Cooking Utensil Company. 


the agent was a non-resident, who sold, by sample, goods 
without the state for non-resident principals, and was 
not, therefore, obnoxious to that clause of the Constitu¬ 
tion of the United States, which declares that Congress 
shall have power to regulate commerce between the 
states. Upon a writ of error to the Supreme Court of 
the United States, our judgment was reversed and the Act 
imposing the privilege tax held to be obnoxious to the 
interstate commerce clause of the Federal Constitution, 
in so far as it was sought to apply it to the non-resident 
agent of non-resident principals, who sold, by sample, 
goods not within the state at the time of sale. Robbins vs. 

Taxing District, 120 U. S. 489. 

“ It is of no substantial importance, under that decision, 
whether the drummer negotiates a sale with a dealer or a 
consumer, and it is equally unimportant as to how the 
delivery is to be made. If the order is sent out of the 
state, and the goods afterwards sent into the state to fill 
it, it is immaterial whether delivery to the buyer is to be by 
a carrier, a postmaster, or by an agent of the seller, to 
whom they are sent for delivery in pursuance of a sale 
previously negotiated while the goods were without the 
state. The view of this court was that such a tax was 
imposed on the occupation of drumming, and, if it did not 
discriminate between residents and non-residents, that it 
was not a regulation of interstate commerce. These 
views did not meet the indorsement of the Supreme 
Court of the United States. That court, with reference 
to questions arising upon the Constitution of the United 
States, is the Court of last resort. It is our duty, with 
respect to such questions, to conform our judgments, 
where a Federal question arises, to the opinions of that 
court. We are, therefore, constrained to hold, in the 
language of that court, that ‘the negotiation of sales of 
goods, which are in another state, for the purpose of 
introducing them into the state in which the negotiation 
is made, is interstate commerce,’ and that a tax upon an 
agent exclusively engaged in making such sales is a tax 
upon interstate commerce, and obnoxious to the Constitu¬ 
tion of the United States.” 

In the case of State vs. Scott, the Supreme Court of Tennessee, 
again reaffirmed the doctrine laid down in the case of Robbins vs. Taxing 
District. This case is reported in 14 Pickle (98 Tenn.) at pages 254 to 
262, and holds that a statute violates the commercial clause of the 
Federal Constitution, and is void, which imposes a privilege tax upon 
persons other than photographers of this state soliciting pictures to be 
enlarged outside of this state. In this case the soliciting agent took 
orders from citizens of this state, and forwarded them, with the small 
pictures to citizens of other states, who for stipulated prices made 




Briefs, Decisions and Opinions. 


125 


enlarged pictures and sent them from the other states into this state 
to or for the person giving the order. In this case the State Supreme 
Court said: 

“Several cases involving the validity of state laws, 
whereby a license or privilege tax was laid upon drummers 
or soliciting agents, with principals in other states, as in 
the present case, have been before the Federal Supreme 
Court in late years; and in every instance, so far as we are 
advised, that court has held those laws to be unconstitu¬ 
tional and void because imposing a burden upon interstate 
commerce. The following are some of those cases: 
Robbins vs. Shelby Taxing District , 120 U. S. 489; Asher 
vs. Texas, 128 U. S. 129; Stoutenburgh vs. Hennick, 129 
U. S. 141; McCall vs. California, 136 U. S. 104; Brennan 
vs. Titusville, 153 U. S. 289.” 

Out attention has been directed to two later decisions of the State 
Supreme Court, one being Kimmell vs. State, 20 Pickle (104 Tenn.), 
pages 183-184, and the other Croy vs. Obion County, 20 Pickle (104 
Tenn.), page 525. In both these cases the solicitors were held liable 
for the privilege tax upon the ground that they were acting for them¬ 
selves, and were selling goods which had been shipped into the state 
and had become a part of the mass of the property of the state before 
the sales thereof had been finally perfected. In our opinion these 
cases do not touch the case where an agent is in good faith representing 
a non-resident seller, and is acting as an agent of the non-resident 
seller in making deliveries of the goods sold. In the Kimmell case our 
Supreme Court used this language: 

“Kimmell testified that he sold the goods by sample 
to citizens of Springfield in Robertson County, Tennessee; 
that he made the sales as the agent, and subject to the 
approval of the L. B. Price Mercantile Company, of 
Kansas City, Missouri; that he forwarded his orders to a 
branch house of his principal at Lexington, Kentucky, 
from which he received the goods ordered, and then 
delivered them to the purchasers. 

* This testimony, considered alone, makes a plain 
case of interstate commerce. It shows commercial 
transactions between citizens of different states, and such 
transactions constitute interstate commerce, which, 
though conducted by an agent, cannot be subjected to 
the burden of taxation under state laws. State vs. Scott, 

98 Tenn. 254, and citations.’ ” 

As stated above, however, on other grounds the solicitors in both 
of the last named cases were held liable for the privilege tax. 




126 


The Aluminum Cooking Utensil Company. 


In our opinion, therefore, if your agent solicits orders, and makes 
sales for you in this state, of goods located in another state, and delivers 
the goods to the particular buyers when they are shipped into this state, 
neither you nor he would be subject to the payment of a privilege tax 
because this would be directly in violation of the Constitution of the 
United States, relative to interstate commerce. 

Yours very truly, 

d-b Lindsay, Young & Donaldson. 




CHAPTER XXXVI 


TEXAS. 

U. S. Supreme Court Decisions. 

Asher vs. Texas, 128 U. S. 129 (1888). 

State Court Decisions. 

Ex parte Holman, 36 Tex. Crim. Rep. 255. 

Talbutt vs. State, 39 id. 64. 

Turner vs. State, 41 id. 545. 

Harkins vs. State, 75 S. W. 26. 

Austin, Texas, February 17, 1914. 

To Hon. B. F. Looney, 

Attorney General, 

Austin, Texas. 


Dear Sir: 

The Aluminum Cooking Utensil Company is a Pennsylvania 
Corporation, having its principal office in the City of Pittsburgh, and 
its manufacturing plant at New Kensington, Pa., at which latter point 
alone it manufactures cooking utensils, which it sells in various states 
of the Union, the business being conducted in the following manner: 
This Company employs traveling salesmen who solicit orders in the 
different states, which are forwarded to the Company at Pittsburgh 
(except that some orders are forwarded to East St. Louis, Ill., and 
Portland, Oregon, to be filled from a stock of goods kept at those points), 
the orders are filled and the goods shipped to the salesmen to be delivered 
to the respective purchasers. No goods are sent to the salesmen, except 


128 


The Aluminum Cooking Utensil Company. 


to fill orders actually received, and the Company carries no stock of 
goods in any states except in Pennsylvania, Illinois and Oregon. The 
said Aluminum Cooking Utensil Company never sends any goods into 
Texas, until they have been ordered by the customer. 

It is the custom of the said Company to employ during the Summer 
months of each year a great number of students from the various 
colleges and universities in this and in other states to act as their agents 
and demonstrators in the sale and proof of their wares and for this 
service the agents and demonstrators are paid sufficient commission to 
enable them to remain in the schools of the state on their own expense. 
In the pursuance of this vocation many students are enabled to take 
advantage of the educational facilities provided, especially at the 
University of Texas, from which institution approximately fifty men 
are employed by this Company. 

During the last few months notice has come to the students thus 
engaged from the University of Texas, that the agents of the said 
Company have been subjected to considerable embarrassment and 
inconvenience in neighboring states, due to the interference of municipal 
authorities in the cities and towns who have sought to require a License 
Tax or “Peddler’s License” from these agents, and in a few instances 
imprisonment has resulted from their failure to produce the License 
Receipt. Of course when these instances were presented to a competent 
court, the unfortunate agent was released, but these instances lately 
occurring have produced an unwholesome effect on the minds of those 
students who do not understand the nature of “Uncle Sam’s” protec¬ 
tion. This precise question is at present bothering many student 
agents who entertain fears that they will be molested and harassed in a 
similar manner during the approaching Summer. These agents would 
greatly appreciate a statement from you that the occupation as above 
set forth is not subject to interference by local and state authorities as 
far as the requirement of an occupation tax or “Peddler’s License” 
is concerned, the business being clearly “Interstate Commerce.” 

INTERSTATE COMMERCE. 

“ Interstate Commerce consists of intercourse and traffic between 
citizens or inhabitants of different states and includes not only the 
transportation of persons and property and the navigation of public 
waters for that purpose, but also the purchase, sale and exchange of 
commodities.” Barnhard Bros. vs. Morrison, T. C. A.—, 87 S. W. 376 
(1905). 




Briefs, Decisions and Opinions. 


129 


The sole power to prescribe rules by which interstate commerce 
shall be governed shall be vested in Congress. Supra, also U. S. Const- 
Art. 1, Sec. 8. 

A foreign corporation which manufactures or deals in goods which 
are the subject of commerce may send its agents into this State to 
solicit orders for the sale of such goods without being embarrassed or 
obstructed by being required to take out licenses, establish resident 
agencies, or file certificates required by the laws of the domestic state. 
Barnhard vs. Morrison , supra; Brennan vs. Titusville , 153 U. S. 289; 
Mitler vs. Goodman, 91 Tex. 41; Gale Mfg. Co. vs. Finkelstien , 22 T. C. A. 
241; Commonwealth vs. Hogan (Kentucky) 74 S. W. 737. 

STATE TAXATION OF: 

“A state can make no law imposing directly or indirectly a burden 
by way of taxation upon Interstate Commerce.” G. C. & S. F. Ry. Co 
vs. Dwyer, 75 Tex. 572, 579. 

Under the Act of 1889, providing that every person peddling 
cooking stoves or ranges shall pay an Occupation Tax, a person acting 
as Manufacturer’s agent, taking orders for stoves to be shipped from the 
factory in another state, in three separate parcels, and be delivered and 
set up by another employee of the manufacturer is within the protection 
of the Interstate Commerce clause of the Federal Constitution. Harkins 
vs. State, (T. Cr.) 75 S. W. 26. The Statute referred to above is Art 
7355, R. S. 1912, Secs. 11, 12. 

“The above and foregoing facts do not constitute appellant a 
peddler within the contemplation of the statute. Then he must 
necessarily be a drummer or agent, and being such and representing 
non-resident corporation, soliciting orders for goods, comes within the 
protection of interstate commerce clause of the U. S. Constitution.” 
Supra, citing Ascher vs. Texas, 128 U. S. 129; Robins vs. The Shelby 
Taxing District, 120 U. S. 489; Hopkins vs. U. S., 171 U. S. 602. 

In Cones & Son Mfg. Co. vs. Rosenbaum, (T. C. A.) 45 S. W. 333, 
the sale by a foreign corporation of goods made in Indiana and shipped 
into Texas, after they were bought, is Interstate Commerce; and in action 
therefor it is unnecessary to allege and prove that a permit to do business 
in Texas was obtained. 

Such sale negotiated by a drummer comes within the protection of 
the Interstate Commerce Clause. Bateman and Bro. vs. Western 
Milling Co., 1 T. C. A., 90. The above is followed in American Starch 
Co. vs. Bateman (T. C. A.), 22 S. W. 771. 




The Aluminum Cooking Utensil Company. 


130 


In Ascher vs. -, T. Cr.-, the court held that 

imposing an Occupation Tax upon Commercial Travelers, Drummers, 
or Solicitors of trade, selling by sample is not an unconstitutional 
regulation of commerce between the states, at that time citing the 
Robbins case, and distinctly going contrary thereto. However this 
case was taken up to the U. S. Sup. Ct. by Ascher where that court 
held: ‘ ‘ The State possesses power to impose an occupation tax without 

discrimination upon its own citizens; but the statute imposing such 
tax when applied to citizens of another state is incorrect, and unconsti¬ 
tutional,” same as Robbins vs. Shelby Co. Tax. Dist. where the State of 
Tennessee levied by statute a tax on drummers, travelling for houses 
not licensed to do business in Tennessee. The drummer traveled for 
an Ohio house. Cites; Le Loup vs. Port of Mobile , etc., 127 U. S. 640. 

Holman Case, 36 T. C. R. 255, 36 S. W. 441, declared the law 
incorrect and unconstitutional requiring payment of license for soliciting 
orders of Photos, etc., when applied to the present case. The proof 
showed “he was operating this business as the agent of a corporation 
situated in Chicago, Ill., which maintained no place of business in Texas. 
Cites and follows: Brennan vs. City of Titusville, supra. 

HAWKERS AND PEDDLERS. 

“A peddler is a person who is a foot trader, according to the 
original signification of the appellation, but by custom it has come to be 
a person who travels from place to place and carries about with him, on 
his back, or on horseback, or in a vehicle of some kind, articles of 
merchandise for sale where he goes." Higgins vs. Rinkler, 47 Tex. 393. 
The above definition has never been disaffirmed by any court in Texas, 
and is quoted with authority in the following cases: Randolph vs. 
Yellowstone Kit, 83 Ala. 472, 3 South. 707; Kennedy vs. People (Colo.) 
4 Pac. 375; Kansas vs. 34 Kans. 437, 8 Pac. 867, also approved and 
followed in 72 Fed. 855. 

A state may not lay any tax or burden on any articles of commerce 
from another state until such goods have become mingled with the 
mass of property in the state laying the burden. Brown vs. Maryland, 
12 Wheat. 425. 

When the goods have become mingled with the mass of property in 
a state it may be taxed as goods of that state, but not until then, at 
which time the tax must not be discriminatory. Welton vs. Missouri, 
91 U. S. 275. 

One selling ranges by sample, taking orders, for future delivery to 






Briefs, Decisions and Opinions. 


131 


be paid for only on such delivery, is not a “peddler” within the Act of 
1889. Potts vs. State , 74 S. W. 31, citing Welton vs. Missouri, supra, 
and numerous other cases. 

Sale by sample is not peddling. Potts vs. State, supra. 

“A person who sells goods by sample but does not deliver at the 
time of the sale is not a peddler.” “CYC,” Vol. 21, Page 320. 


U. S. Supreme Court Cases where the question submitted above 
has been ruled squarely to come within the protection of Interstate 
Commerce Clause of the U. S. Constitution: 

Caldwell vs. North Carolina, 187 U. S. 622, decided in 1902, (portrait 
agent). Rearick vs. Pennsylvania, 203 U. S. 507, decided in 1904, orders 
taken in Pennsylvania, filled by principal in Ohio, and forwarded from 
Ohio to the agent in Pennsylvania for delivery, etc. Dozier vs. Alabama, 
218 U. S. 124 (1909), a picture agent case. Kehrer vs. Stewart, 197 
U. S. 60 (1904), a case where agent of a Chicago principal sold meat in 
Atlanta, Ga., and made delivery. Robbins vs. Shelby Taxing Dist., Supra. 


If in your opinion the above citations furnish evidence sufficient 
that the business these students are intending to engage in is under 
the protection of the Interstate Clause of the U. S. Const., and does not 
come under the accepted definition of “peddling,” they and others 
engaged in like work will appreciate a ruling from you that their pursuit 
is free from interference by the state and municipal authorities so far 
as the imposition of license and tax for the occupation. 

Very truly yours, 

Robert J. Sullivan. 

OCCUPATION TAX—INTERSTATE COMMERCE- 
PEDDLING—SOLICITING ORDERS. 

1. The term “peddler” defined. 

2. A license tax may be constitutionally imposed upon peddlers 
because they are not engaged in interstate commerce. 

3. Sec. 39 of Art. 7355, R. S. 1911, is invalid in so far as it attempts 
to impose an occupation tax upon the soliciting of orders for goods for 
future delivery where the execution of the contract of sale requires the 
transportation of the goods sold from one state into another, because 






132 


The Aluminum Cooking Utensil Company. 


such a tax is an imposition upon interstate commerce and prohibited 
by the federal constitution. 

4. The fact that goods ordered are shipped in bulk to and delivered 
by the salesman to the respective purchasers, is immaterial if the 
transaction has in other respects the character of interstate commerce. 

5. However, if for any reason goods ordered are not delivered 
and are left on hand, a re-sale thereof would not be protected as inter¬ 
state commerce, and such salesman would be amenable to the license 
tax laws of this state. 


Austin, Texas, February 24, 1914. 


Hon. Robert J. Sullivan, 

County Attorney, 

Conroe, Texas. 

Dear Sir: 

Under date of the 17th inst., you make the following statement to 
this Department with reference to a certain business that is proposed 
to be conducted in this state: 

“The Aluminum Utensil Company is a Pennsyl¬ 
vania Corporation, having its manufacturing plant 
at New Kensington, Pa., at which latter point alone 
it manufactures cooking utensils, which it sells in various 
states of the Union, the business being conducted in the 
following manner: This Company employs traveling 
salesmen who solicit orders in the different states, which 
are forwarded to the Company at Pittsburgh (except that 
some orders are forwarded to East St. Louis, Ill., and 
Portland, Oregon, to be filled from a stock of goods kept 
at those points), the orders are filled and the goods shipped 
to the salesmen to be delivered to the respective pur¬ 
chasers. No goods are sent to the salesmen, except to 
fill orders actually received, and the Company carries 
no stock of goods in any states, except in Pennsylvania, 

Illinois and Oregon. The said Aluminum Cooking Utensil 
Company never sends any goods into Texas, until they 
have been ordered by the customer.” 

The question you ask as whether or not the business to be pursued, 
as outlined by you, will be protected as interstate commerce, or would 
it be subject to a license tax either as peddling or otherwise. 

The business you describe is not that of peddling. The courts of 





Briefs, Decisions and Opinions. 


133 


the country have uniformly held that a license tax may be constitution¬ 
ally imposed upon peddlers, because not engaged in interstate commerce. 

Emert vs. State of Missouri, 156 U. S. 296. 

Commonwealth vs. Harmel, 166 Pa. St. 89. 

Commonwealth vs. Dunham, 191 Pa. St. 73. 

Rash vs. Farley , 91 Ky. 344. 

State vs. Gauss, 85 Iowa, 21. 

State vs. Agee, 83 Ala. 110. 

Hall vs. State, 39 Fla. 637. 

State vs. Gorham, 115 N. C. 121. 

The term “peddler” has many varities of definitions, but the 
popular definition is: 

“A small retail dealer who carries his merchandise 
with him, travels from house to house and from place to 
place, either on foot or horse back or in a vehicle drawn 
by one or more animals, exposing his goods for sale and 
selling them.” 

Randolph vs. Yellowstone Kit, 84 Ala. 472. 

Also see numerous authorities cited in Words and Phrases, Vol. 6, 
Page 5261. 

This definition of a peddler has been applied in numerous cases, 
among others the following, which show clearly the nature of the 
employment that is called peddling: 

“A peddler is a dealer or trader in small wares, who 
has no permanent place of business, but carries his wares 
with him from place to place or from house to house. He 
is one who buys to sell again, whose gains are the profits 
realized on small sales.” 

12 L. R. A. 624. 

“A peddler is an itinerant who goes from place to 
place and from house to house carrying for sale and expos¬ 
ing to sale the goods, wares and merchandise he carries. 

He generally deals in small and cheap articles such as he 
can conveniently carry in a cart or on his person.” 

Commonwealth vs. Farnum, 114 Mass. 267. 

“A peddler is one who sells anything having value, 
bought by him and sold from place to place in small 
quantities.” 





134 


The Aluminum Cooking Utensil Company. 


Roy vs. Schuff, 51 La. Ann. 86. 

“Or one who carries about with him the article of 
merchandise which he sells; that is to say, the identical 
merchandise he sells he has with him and delivers at the 
time of sale.” 

50 La. Ann. 574. 

52 La. Ann. 694. 

“The term “peddler” includes any one who goes 
from place to place to peddle or retail goods, wares or 
other things, without regard to the distance between the 
different places visited in so doing.” 

West vs. City , 65 S. W. 120. 

Rapalje defines a peddler to be: 

“A person who carries goods from place to place 
for sale.” 

While Webster defines a peddler to be: 

“A traveling trader; one who carries about small 
commodities upon his back, on a cart or on a wagon and 
sells them.” 

“By peddling we understand to go around from 
house to house or from customer to customer and sell 
goods.” 

Du Boystown vs. Rochester , 9 Pa. Co. Ct. R. 442. 

It is useless to quote other definitions, as they are all to the same 
effect and mean substantially the same. It is therefore easy to deter¬ 
mine that the business you describe is not that of peddling. 

The only statute in this state levying a tax on the business of 
soliciting orders for sales such as you describe is Sec. 39 of Art. 7355, 
Acts of 1911, which reads as follows: 

“From every person, firm or association of persons 
selling on commission, if in a city of more than ten thous¬ 
and inhabitants, fifty dollars; if in a city or town of less 
then ten thousand inhabitants, twenty-five dollars. This 
article is intended to cover every person, firm or associa¬ 
tion of persons selling on samples only, and who do not 
carry any stock of merchandise or anything else on hand; 
provided, that this tax shall not apply to commercial 
travelers or salesmen making sales or soliciting trade 
from merchants.” 

It seems that this occupation tax is levied on every person who 
sells on samples, to people other than merchants, as commercial travelers 
or salesmen soliciting trade from merchants are specially excepted. 





Briefs, Decisions and Opinions. 


135 


The question is, as to the validity of this statute, in so far as it 
applies to traveling solicitors for sale of goods for future delivery where 
the execution of the contract of sale requires the transportation of the 
goods sold from one state into another. 

In our opinion such a tax is an imposition upon interstate commerce 
and prohibited by the federal constitution in so far as it applies to the 
soliciting of orders for the sale of goods to be transported from one 
state into another. 

Mr. Tiedman, in his work entitled “State and Federal Control of 
Persons and Property,” Vol. 2, Sec. 218, among other things, states 
the rule of law governing this subject as follows: 

“But when the traveling salesman receives an order 
for goods, the executory contract of sale is made by him 
on the spot, to be performed, however, subsequently by 
the transportation of the goods to and their delivery at 
the place of sale, and if the principal and the goods are 
outside the state in which the sale was made the trans¬ 
action is interstate commerce. The levy of a license tax 
upon such a transaction would necessarily be a tax upon 
interstate commerce, which is prohibited not only by the 
interstate commerce clause of the United States constitu¬ 
tion, but also by Article 1, Section 10, of the same consti¬ 
tution, which prohibits the imposition of a state tax upon 
imports and exports************But the imposition of 
a license tax upon a traveling salesman who solicits an 
receives orders for goods for future delivery is void 
because he is engaged in interstate commerce in every case 
in which the performance of the contract of sale involves 
the transportation of goods from one state to another or 
the transfer of title to goods which are located in some 
other state than that in which the sale was made.” 

In support of this doctrine the author has cited numerous authori¬ 
ties in Note 2, at Page 1029. 

There can scarcely be a doubt, in the light of these authorities, that 
the business you describe is interstate commerce, and that* the same is 
exempt from the occupation tax imposed by the statutes of this state. 
The authorities cited by you in presenting your question fully sustain 
this proposition, and in order that the collection of authorities you 
have made may not be lost I will reproduce them in this connection, 
as they are pertinent to this inquiry. 

“Interstate commerce consists of intercourse and 
traffic between citizens or inhabitants of different states, 
and includes not only the transportation of persons and 




136 


The Aluminum Cooking Utensil Company. 


property and the navigation of public waters for that 
purpose, but also the purchase, sale and exchange of 
commodities.” 

Barnhard Bros. vs. Morrison, 87 S. W. 376. 

“The sole power to prescribe rules by which inter¬ 
state commerce shall be governed is vested in Congress 
alone.” 

U. S. Constitution, Art. 1, Sec. 8. 

“A foreign corporation which manufactures or deals 
in goods which are the subject of commerce may send its 
agents into another state to solicit orders for the sale of 
goods without being required to pay a license tax or to 
establish resident agencies or file certificates required by 
the laws of the domestic state.” 

Brennan vs. Titusville, 153 U. S. 289. 

Miller vs. Goodman, 91 Tex. 41. 

Gale vs. Finkelstein, 21 T. C. A. 241. 

Commonwealth vs. Hogan (Ky.) 74 S. W. 737. 

“A state can neither directly nor indirectly place a 
burden by way of taxation upon interstate commerce.” 

G. C. & S. F. Ry. vs. Dwyer, 75 Tex. 572. 

“Under an Act of 1889, providing that every person 
peddling cooking stoves or ranges shall pay an occupation 
tax, a person acting as manufacturer’s agent, taking 
orders for stoves to be shipped from the factory in another 
state in three separate parcels and to be delivered and set 
up by another employee of the manufacturer, is within 
the protection of the interstate commerce clause of the 
federal constitution.” 

Harking vs. State, 75 S. W. 26. 

Also to the same effect see Ascher vs. Texas, 128 U. S. 129. 

Robins vs. The Shelby Taxing District, 120 U. S. 489. 

Hopkins vs. U. S., 171 U. S. 602. 

Cohns & Sons Mfg. Co. vs. Rosenbaum, 45 S. W. 333. 

Bateman vs. Western Milling Co., 1 T. C. A. 90. 

Starch Co. vs. Bateman (T. C. A.), 22 S. W. 771. 

Le Loup vs. Port of Mobile, 127 U. S. 640. 




Briefs, Decisions and Opinions. 


137 


In your statement of facts it does not appear whether the goods 
are to be shipped direct to the purchaser or to the salesman to be 
delivered; neither does it appear whether the goods are to be shipped in 
separate packages according to each order or in quantities sufficient 
in amount to fill the orders to be by the salesman unpacked, assorted 
and delivered, according to each order respectively. 

We believe, however, that these considerations are immaterial and 
would not of themselves change the interstate character of the trans¬ 
action if in other respects it belonged to that category. Mr. Cook, in 
his work on the commerce clause of the federal constitution (Sec. 75), 
in discussing this phase of the subject, states the law as follows: 

“And commonly, though not necessarily, the restric¬ 
tion is in the form of a tax or fee upon such agent; that is 
to say, imposed upon him as a condition of entering into 
such a contract of sale, a tax upon the seller being justly 
regarded as in effect upon the article sold. As in the case 
of the restrictions just considered (a license tax), the 
imposition of such a restriction upon the contract of sale 
is clearly established to be invalid, and it is none the less 
invalid because of the property in such article not passing 
to the buyer until delivery to him, thus upon payment of 
the price. Nor does it ordinarily make any difference 
that transportation is not directly from the seller to the 
buyer; thus it may be directly from the seller to his agent 
in the State, and thereafter from the agent to the buyer. 

Nor does it make any difference, as commonly happens, for 
convenience sake, the articles are transported ‘ in bulk ’ to 
the agent, who thereafter ‘breaks’ the bulk and makes 
distribution of the articles therein contained to the respec¬ 
tive buyers.” 

The Caldwell case, 187 U. S. 622, was where a Chicago Portrait 
Company, of Chicago, Ill., employed agents to sell pictures and picture 
frames in North Carolina; the Portrait Company shipped large packages 
of pictures and frames for which it received orders from its soliciting 
agent, the consignment being made to another agent of the Company 
also of Greensboro, the shipment being addressed to the Chicago 
Portrait Company. The receiving agent broke the bulk, placed the 
pictures in their proper frames and delivered them to the respective 
purchasers. The agent thus delivering was arrested for failing to 
comply with an ordinance of the City of Greensboro, which imposed a 
license tax on the business of selling and delivering pictures, frames, etc. 
The Supreme Court held that this ordinance as applied to the facts of 
this case was invalid in that it was an interference with interstate 
commerce, and among other things the court said: 





138 


The Aluminum Cooking Utensil Company. 


“Nor does the fact that these articles were not 
shipped separately and directly to each individual pur¬ 
chaser, but were sent to an agent of the vendor at Greens¬ 
boro, who delivered them to the purchasers, deprive the 
transaction of its character as interstate commerce. It 
was only that the vendor used two instead of one agency 
in the delivery. It would seem evident that if the vendor 
had sent the articles by an express company, which 
should collect on delivery, such a mode of delivery would 
not have subjected the transaction to state taxation. 

The same could be said if the vendor himself, or by a 
personal agent, had carried an delivered the goods to the 
purchaser. That the articles were sent as freight by 
rail and were received at the railroad station by an agent 
who delivered them to the respective purchasers, in no¬ 
wise changes the character of the commerce as interstate.” 

The case of Dozier vs. Alabama (1909), 218 U. S. 124, called in 
question a statute of Alabama that imposed a license tax for soliciting 
orders for the enlargement of photographs or for picture frames, on all 
persons not having a permanent place of business in the state. The 
Chicago Crayon Company, with its place of business in Chicago, 
solicited orders in Alabama without paying this tax. The orders were 
given for the portraits and included an option to purchase the frame in 
which the portrait should be placed. The portraits and frames were 
sent to the agents of the Company in Alabama, and he made deliveries 
and collected for the same. The agent was tried and fined in the state 
court for violating this statute, and the Supreme Court of Alabama, 
while admitting that the dealings concerning the portraits were inter¬ 
state commerce, sustained the conviction on the ground that the sale of 
the frame was wholly a local matter. The Supreme Court of the 
United States reversed the Alabama Court on the ground that the 
attempt to apply the statute in question was in violation of the commerce 
clause of the federal constitution. While at the time the orders were 
given the purchaser did not contract to take the frames, but merely 
obtained an option to take them, and on this point the court says 
(p. 127-8): 


“No doubt it is true that the customer was not 
bound to take the frame unless he saw fit, and that the 
sale of it took place wholly within the State of Alabama, 
if a sale was made. But, as was held in Rearick vs. 
Pennsylvania, 203 U. S. 507-512, what is commerce 
among the states is a question depending upon broader 
consideration than the existence of a technically binding 
contract or the time and place where the title passes.” 

The case of Rearick vs. Pennsylvania, 203 U. S. 509-513, presented 





Briefs, Decisions and Opinions. 


139 


the following facts: An Ohio corporation employed an agent to solicit 
retail orders for the sale of groceries in the State of Pennsylvania. 
When the Company had received a large number of orders it filled them 
at its business place in Columbus, by putting up the objects of the 
several orders in distinct packages and forwarded them to the agent by 
rail addressed to him for A, B. C, etc., the respective persons giving the 
orders. The Company kept the orders but kept no book accounts 
with the customers, looking only to their agent. This agent alone had 
authority to receive the goods from the railroad, and when received by 
him he delivered them, as was his duty, to the customers and made 
collection and forwarded the same to his principal. The customer had 
the right to refuse the goods if not equal to the sample shown to him 
when he gave the order. In cases of non-delivery the defendant 
returned the goods to Columbus. No shipments were made to the 
defendant, except to fill such orders, and no deliveries were made by 
him except to the parties named on the packages. In the case of 
brooms they were tagged and marked like other articles according to 
the number ordered, but they then were tied together into bundles of 
about a dozen, wrapped up conveniently for shipment. The agent 
was prosecuted under a state law imposing a license tax, and his defense 
was that the state law was invalid in that it was an imposition upon 
interstate commerce prohibited by the federal constitution. In 
disposing of the case the court, among other things, said: 

“It will be seen from the insertion of the statement 
concerning the brooms that a ground relied upon by the 
prosecution to avoid that conclusion was that the goods, 
or at least this part of them, were not in the original 
packages when delivered, and that therefore the case did 
not fall within decisions of the court cited.” 

Under the facts stated above the Supreme Court held that the law 
of Pennsylvania in question did not apply to these transactions, and 
that the same were protected as interstate commerce, and that the 
license tax in question was an interference therewith. 

We therefore conclude that whether the goods are shipped to the 
purchasers direct or to the agent for distribution, or whether each order 
was bound into a bundle separately and tagged with the name of each 
purchaser or in some other way to disassociate it from others, or whether 
the quantity, representing the aggregate of orders, is sent to the sales¬ 
man to be by him separated and the amount of each order assembled 
and delivered, become and are immaterial considerations, and that the 
absence or existence of either of these elements would not change the 




140 


The Aluminum Cooking Utensil Company. 


nature of the transaction, if it in other respects had the nature of 
interstate commerce. 

Another material matter not mentioned by you is this: That is, 
in your statement nothing is said as to the method, if any, of disposing 
of goods that are not accepted by the purchaser, or where for any 
reason goods are left on hand undelivered. 

If goods left on hand and not delivered are to be returned by the 
salesman or agent to the manufacturer, no difficulty is presented, but 
if the salesman or agent under such circumstances is authorized to sell 
such left-overs, he would clearly be amenable to the tax laws of this 
state, because under such circumstances the re-sale would not be, and 
could not receive protection as, interstate commerce. 

This proposition seems to follow as a necessary corollary from the 
general principles controlling this subject, but the following case seems 
to be directly in point. In the case of State vs. Cohen , 70 Pac. 600, 65 
Kans. 849, the defendant, an employee of a wholesale liquor house 
located at St. Joseph, Mo., was engaged in soliciting orders for the sale 
of intoxicating liquors in the State of Kansas. When such orders were 
received they were forwarded to the house, and if approved the liquors 
would be shipped to each person ordering respectively. In the course 
of the business so conducted often persons ordering would fail to pay 
and receive the goods, in which event they would remain stored at the 
depot until another order corresponding in amount and character to 
the goods shipped and left over was made, and thereupon it was sought 
to fill the latter order with these left-over goods. In disposing of this 
case the court said: 

“Whatever may be the right of the defendant under 
the law as a traveling salesman engaged in soliciting 
orders for a house located in a foreign state, where such 
orders are received, accepted and filled in such state and 
liquors ordered and delivered to a common carrier for 
transportation into and delivery to the purchaser in this 
state, the transaction here shown cannot be justified in 
law. It constituted an unlawful sale and violation of the 
law.” 

If, therefore, in the process of conducting the business outlined in 
your letter any goods should be left over and not delivered to the person 
ordering the same and not returned to the Company, but should be 
sold to other purchasers subsequently found, this would clearly not be 
interstate commerce, and the salesman or agent would be taxable and 
amenable to a criminal prosecution for failure to pay the tax and obtain 
the license. 




Briefs, Decisions and Opinions. 


141 


It is the opinion of this Department, and you are so advised, that 
the pursuit of the business described in the first paragraph of your 
communication quoted herein is that of interstate commerce, and that 
those soliciting orders for sales under the circumstances, as mentioned, 
will be exempted from any occupation tax imposed by the statutes of 
this state, for the sufficient reason that the same is interstate commerce 
pure and simple as adjudicated over and over again in similar cases. 

Yours very truly, 

B. F. Looney, 

Attorney General. 


BFL—S&mm 

This opinion has been passed upon and approved by the Depart 
ment in executive session, and is now ordered recorded. 


B. F. Looney, 

Attorney General. 





CHAPTER XXXVII. 


VERMONT. 


FRED E. GLEASON, 
Attorney and Counsellor at Law, 

43 State Street. 


Montpelier, Vermont, December 9, 1913. 

Hon. Rufus E. Brown, 

Burlington, Vt. 

Dear Mr. Brown: 

I desire to trespass upon your time to submit a proposition which 
has come to attention in Vermont and in other states in order that I 
may if possible obtain an opinion from you which may serve as a guide 
for action in the future with regard to this corporation. 

The Aluminum Cooking Utensil Company is a Pennsylvania 
corporation with principal office at Pittsburgh and manufacturing plant 
at New Kensington, Pennsylvania, at which latter point alone the 
Company manufactures cooking utensils which are being sold in various 
states in the following manner. 

The Company employs traveling salesmen who carry samples of 
its goods and solicit orders by a house to house canvass. Orders thus 
received are forwarded to the office of the Company in Pennsylvania 
and filled at New Kensington, the goods being shipped to the salesmen 
to be delivered to the various purchasers. No goods are given the 
salesmen except to fill orders actually received and the Company 
carries no stock of goods in any of the states except Pennsylvania as 
above indicated and at East St. Louis, Ill., and Portland, Ore., for the 
sake of convenience. 

/ 


Briefs, Decisions and Opinions. 


143 


It would further appear that this Company is conducting an inter¬ 
state business and that its agents do not come within the provisions of 
Local Statutes or Ordinances intended to apply to peddlers and hawkers, 
and that, therefore, such agents ought not to be required to pay fees 
or procure licenses, provisions for which may be made locally. 

The Company is endeavoring to obtain from the attorney general 
of each state an opinion to the effect that the agents of the Company 
come under the Interstate Commerce Laws, and are, therefore, exempt 
from Local Statutes, Ordinances, license fees, and interference, in order 
that in the respective states these opinions may prevent loss of time and 
expense, and I enclose herewith a copy of a communication from 
Hon. Grant Fellows, Attorney General of the State of Michigan, several 
other states thus far having agreed to the proposition and their respec¬ 
tive attorneys general having issued similar opinions. 

I trust you will do me the courtesy to advise me at your earliest 
convenience of your opinion in the matter or whether you would care 
to be quoted in regard to the same, and assuring you that your reply 
will be greatly appreciated by 


FEG—PH 


Yours respectfully, 

Fred E. Gleas 




144 


The Aluminum Cooking Utensil Company 


t 



Jjtate of Vermont 

Ornc* or 

Attorney General 

rufcs e. brown 

H.TTOIUHT OUUAb 

Bells m Ross 

Dec, 11, 1913. 


Fred E. Gleason, Esq. 

Montpelier, Vt. 

Dear Sir;- 

I have your letter of Deo, $th, regarding the 
travelling salesmen, of The Aluminum Cooking Utensil Company, 
fou of course understand that it ie not the custom of thie 
office to furnish opinions regarding matters of this nature 
solely for the benefit of private interests. Regarding the 
matter under consideration however, it seems to me that there 
oan he no difference of opinion, l fee1 entirely confident 
that the agents of thie^ concern doing business ae indicated in 
your letter and in the copy of the communication from the Attorney 
General of the State of Michigan, do not come within the provisions 
of the peddlers law.and cannot be compelled to procure a license, 
of any kind. 


reb/bmr, 


Very respectfully yours, 



Attorney General. 




CHAPTER XXXVIII 


VIRGINIA. 

State Court Decisions. 

Adkins vs. Richmond, 98 Va. 91. 


CHAPTER XXXIX 


WEST VIRGINIA. 
State Court Decisions. 

State vs. Lichtenstein , 44 W. Va. 99. 


CHAPTER XL, 


WYOMING. 

State Court Decisions. 

Clements vs. Town of Casper, 4 Wyo. 494. 
State vs. Willingham, 9 id. 290. 


CHAPTER XLI 


INSULAR POSSESSIONS OF THE UNITED STATES. 
Territories of Hawaii, Porto Rico and Philippine Islands. 


George B. Gordon, 
William Watson Smith, 
Ralph Longenecker, 
Allen T. C. Gordon, 
Alexander Black. 


GORDON & SMITH, 
Attorneys at Law, 

Frick Building Annex. 


Miles H. England, 
John G. Buchanan. 


Pittsburgh, Pa., February 20th, 1914. 


Mr. P. J. Urquhart, Treasurer, 

Aluminum Cooking Utensil Company, 

New Kensington, Pa. 

Dear Sir: 

In a letter to us of the 2d ult. you inquired whether salesmen of 
your company, if sent to Hawaii, Porto Rico, or the Philippines, would 
be protected from the payment of license taxes in the same way as your 
men working in other states of the Union. We assume that your 
business in the places mentioned would be conducted in the manner 
indicated in our letter to Mr. G. R. Gibbons of April 28th, 1913, and 
upon this assumption beg to advise you as follows: 

Your salesmen in most of the states of the Union are protected 
from the payment of state or municipal license taxes because such 
taxes would amount to an interference with “commerce************ 
among the several states,” the regulation of which is put by the Federal 
Constitution in the hands of Congress. Is commerce between this 



Briefs, Decisions and Opinions. 


149 


state and Hawaii, Porto Rico, or the Philippines “commerce********** 
among the several states” within the meaning of the Constitution ? 
A positive answer to this question cannot, we believe, be given in the 
present state of the authorities. We shall cite, as illustrative of the 
cases to be taken into account in answering the question, a number of 
the decisions on the meaning of the word “state” as used in the Federal 
Constitution and statutes and on the status of the various territories 
and possessions of the United States. 

In Hepburn vs. Ellzey , 2 Cranch 445, it was held that the District 
of Columbia is not a state within the meaning of the provisions of the 
Judiciary Act of Congress and the Judiciary Article of the Constitution, 
Chief Justice Marshall saying that “the members of the American 
confederacy only are the states contemplated in the constitution” 
(see pages 452-453). To the same effect are Barney vs. Baltimore , 
6 Wall. 280 (see per Miller J., pages 287-288); Swayne, J., in Railroad 
Co. vs. Harris , 12 Wall. 65, at page 86. The same ruling has been made 
as to the territories: New Orleans vs. Winter, 1 Wheat. 91 (see per 
Marshall, C. J., page 94); Watson vs. Brooks, 13 Fed. 540, in which last 
case, however, Deady, D. J., severely criticizes the rule. So, also, it 
has been held that the provision of the Judiciary Act providing for a 
writ of error in certain cases relating to a statute of a state does not 
apply to a statute passed by the legislature of a territory: Scott vs. 
Jones, 5 How. 343 (see per Woodbury, J., pages 376-379); Miners' 
Bank vs. State of Iowa, 12 How. 1 (see per Daniel, J., pages 6-7). The 
District of Columbia is not a state against which the statute of limita¬ 
tions will not run, but only a municipal corporation: Metropolitan 
R. R. vs. District of Columbia, 132 U. S. 1 (see per Bradley, J., page 9). 
In Downes vs. Bidwell, 182 U. S. 244, Mr. Justice Brown, after an 
elaborate review of the authorities (see pages 248-280), concluded that 
Porto Rico, immediately after its annexation, could be regarded 
neither as a state nor as a part of the United States within the constitu¬ 
tional provisions that “all duties, imposts and excises shall be uniform 
throughout the United States.” Justices White, Shiras, McKenna 
and Gray, who with Mr. Justice Brown constituted the majority of 
the court in that case, do not agree that a regularly organized territory 
is not within the provision in question, but they do not maintain that 
such a territory can be called a “state.” 

On the other hand, the Territory of Washington was held to be a 
state within the meaning of an act of Congress relating to vessels bound 
from a port in one state to a port in any other than an adjoining state: 
In re Bryant, Deady 118. The Court proceeded on the grounds that 




150 


The Aluminum Cooking Utensil Company. 


a territory is a state as the term is used by writers on general law, and 
that the term is used in the act as a geographical expression rather than 
a political one (see per Deady, J., 120-121). Another act of Congress 
provided that the master of a vessel coming in or going out of a port 
situated upon waters which are the boundary between two states might 
employ any pilot licensed by the laws of either of the states. The same 
judge held that, even if it should be admitted that the Territory of 
Washington was not a state in the sense in which the word was used in 
the Constitution, it was a state in the general sense of the term and 
within the mischief intended to be remedied by the act: The Ullock, 
19 Fed. 207 (see per Deady, J., pages 211-213); The Abercorn, 26 Fed. 
877 (see per Deady, J., pages 878-879). An act of Congress provides 
that national banks may be taxed by the states under certain conditions. 
The Supreme Court held that the Territory of Montana could properly 
levy a tax under this act, since the term “states” in its wider meaning 
includes the District of Columbia and the territories, and since, if a 
state of the Union, a distinct, independent sovereignty, may tax a 
national bank, there is no reason why a territory subject to Congressional 
supervision should not be permitted to do so: Talbott vs. Silver Bow 
County, 139 U. S. 438 (see per Brewer, J., pages 440-446). A conven¬ 
tion with France gave Frenchmen certain rights in “the States of the 
Union.” The Supreme Court held that, while ordinarily this term 
would not include the territories and the District of Columbia, that 
district is in a general sense a “state,” and since a treaty must be 
liberally interpreted, specially where it creates reciprocal rights in the 
parties to it (as this convention did), the District of Columbia must be 
held to come within the term “States of the Union.” 

When we turn to the few cases involving the construction of the 
interstate commerce clause of the Constitution, with which we are 
immediately concerned, we do not find harmony among them. Judge 
Deady, in Ex parte Hanson, 28 Fed. 127, said that apparently “the 
several states” referred to in that clause are only those embraced in 
the Union (see page 131). On the other hand, Mr. Justice Burford, 
in Butner vs. Western Union Tel. Co., 2 Okla. 234,speaks of a hypothetical 
statute of a territory as being unconstitutional because in conflict with 
the power of Congress “to regulate commerce between the states and 
territories ” (see pages 247-248). In United States vs. Ames, 95 Fed. 
453, the court had to construe an act of Congress making it an offense 
to cause lottery tickets to be carried “from one state to another.” 
The petitioner was arrested for causing lottery tickets to be carried 
from Texas to the Territory of New Mexico. It was held that he should 




Briefs, Decisions and Opinions. 


151 


be discharged, a territory not being a “state” within the meaning of 
the act, which could be sustained under the Constitution only as a 
regulation of commerce between states (see per Jenkins, Circ. J., pages 
455-457). 

While the matter has not been adjudicated by the United States 
Supreme Court, we believe that the weight of authority inclines toward 
the holding that commerce between this state and Hawaii, Porto Rico, 
or the Philippines is not interstate commerce. We do not mean, how¬ 
ever, to advise that your salesmen engaged in such commerce will be 
subject to territorial or municipal license taxes. Indeed, as a practical 
matter, we think it unlikely that they can be. Taxation is a matter of 
legislation. The supreme legislature of each of the places in question 
is Congress, the body which is given by the Constitution the power to 
regulate commerce among the several states. One of the main purposes 
of delegating this power to Congress was to secure uniformity through¬ 
out the country in a matter believed to be one of no mere local 
concern. Under this power Congress could doubtless impose a license 
tax on all salesmen engaged in interstate commerce. But Congress 
has not seen fit to do so. It has preferred the uniformity of no taxation 
at all to the uniformity of an even tax imposed by itself. The commerce 
in which the salesmen of your Company in Hawaii, Porto Rico, or the 
Philippines would be engaged would be essentially similar to that in 
which your salesmen elsewhere are engaged. Congress has not seen 
fit to tax it expressly, even if we assume that it has power to do so 
without taxing interstate commerce as well. Can we suppose that in 
delegating legislative power to the territories or the Philippines it 
intended to give them the power to affect the uniformity of no taxation 
which would otherwise exist ? We believe that the contrary supposition 
should rather be entertained, and think, therefore, that any license tax 
laws passed by Hawaii, Porto Rico, or the Philippines should be con¬ 
strued as applicable only to domestic commerce and not to the salesmen 
of your Company. Whether any laws exist in the various places named 
under which an attempt might be made to tax your salesmen we have 
not inquired, believing that you can be advised better on this point 
by local counsel. Our conclusion, you will understand, is not to be 
regarded as a positive statement of existing law. We believe, however, 
that it finds some support in the following decisions: 

Robbins vs. Shelby County Taxing District , 120 U. S. 489. This is 
perhaps the leading case on the question of license taxation of salesmen 
engaged in interstate commerce. Mr. Justice Bradley, in delivering 
the opinion of the court, gives as one of the reasons why the States 




152 


The Aluminum Cooking Utensil Company. 


cannot levy such taxes (pages 498-499): “Congress alone can do it; 
for it is obvious that such regulations should be based on a uniform 
system applicable to the whole country. ” 

Stoutenburgh vs. Hennick, 129 U. S. 141. Hennick was convicted 
in the police court of the District of Columbia of engaging within the 
district in the business of offering for sale as agent of a Baltimore firm 
certain goods without having obtained a license to do so, contrary to 
an act of the Legislative Assembly of the District. He was discharged 
from custody on a writ of habeas corpus and on writ of error the United 
States Supreme Court affirmed the judgment of the lower court on the 
ground that the business in which Hennick was engaged was “within 
the domain of the great, distinct, substantive power to regulate com¬ 
merce, the exercise of which cannot be treated as a mere matter of 
local concern, and committed to those immediately interested in the 
affairs of a particular locality;’’ that the act of the Legislative Assembly 
of the District was to be regarded “as a regulation of a purely municipal 
character’’ not embracing the business in which Hennick was engaged; 
that Congress could not delegate to the Legislative Assembly of the 
District the power to tax business agents, such as Hennick, and there 
was nothing in the record to justify the assumption that it endeavored 
to do so, the powers granted to the district being municipal merely (see 
per Fuller, C. J., pages 147-149). Since Congress had not attempted 
to delegate to the District of Columbia the power to tax salesmen, such 
as Hennick, the case cannot be regarded as a binding authority to the 
effect that Congress could not delegate such power to a territorial 
legislature; but even if it could do so, it seems very unlikely that it 
will be held to have done so unless the words of the enabling act clearly 
require such a construction. We may add that in that case Miller, J. 
dissented on the ground that commerce, one of the parties to which 
was a citizen of any place out of a state of the Union, was not commerce 
“among the several states’’ (pages 149-151.) 

Farris vs. Henderson, 1 Okla. 384. The legislature of Oklahoma 
Territory passed a statute providing for a tax on cattle entering and 
leaving certain counties of the territory. The statute was held void 
on the ground that the legislature was given no power by the organic 
act of the territory to pass such a statute and on the ground that it 
interfered with commerce between the states south and north of the 
territory (see per Dale, J., pages 389, 392-395). 

Hanley vs. Kansas City Southern Railway Company, 187 U. S. 
617.0. The Railway charged a higher rate on goods shipped from one 




Briefs, Decisions and Opinions. 


153 


point in the State of Arkansas to another point in the same state, where 
a large part of the route was outside of the state in the Indian Territory, 
than the rate allowed by the State-Railroad Commission, and brought a 
bill for an injunction against enforcing the rate fixed by the Commission. 
The injunction was granted, the court assuming that the power of 
Congress in the matter was no less than its power over commerce 
among the states and holding, therefore, that the State of Arkansas 
could not fix the rate (see per Holmes, J., pages 619, 620-621). It is 
to be noted, however, that the court in this case distinguished the case 
of a tax on receipts, at least one proportioned to the amount of trans¬ 
portation in the State, from a regulation of rates; and in the later case 
of Ewing vs. Leavenworth , 226 U. S. 464, it was held that a state may 
levy a license tax on an express company for carrying packages from 
one point in a state to another though a part of the carriage is through 
another state. 

United States vs. Whelpley, 125 Fed. 616. This case arose under 
the Act of Congress punishing the carrying of lottery tickets from one 
state to another. The defendants were indicted for shipping lottery 
tickets from Virginia to the District of Columbia. A demurrer to the 
indictment was sustained on the ground that the word “state” in a 
criminal statute of this kind should not be construed as including the 
District of Columbia. The court said, however, that in view of the 
decision in Stoutenburgh vs. Hennick , supra, and the language of Mr. 
Justice Holmes in Hanley vs. Kansas City Southern Railway Company, 
supra, a subordinate federal court could not properly hold an Act of 
Congress regulating commerce from a state to the District of Columbia 
unconstitutional (see per McDowell, D. J., pages 616-619). 

Beitzell vs. District of Columbia, 21 App. Cas. D. C., 49. An Act 
of Congress imposed a license tax on agents doing business in the 
District of Columbia. The defendant was the local agent of brewers, 
whose brewery and offices were located in New York, and had no place 
of business and kept no goods in stock in the District of Columbia. He 
solicited orders which were filled at the brewery by shipping the goods 
directly to the purchaser. The Court held, not deciding whether the 
District of Columbia is or is not a state within the meaning of the 
Constitution, that Congress should not be presumed to have intended 
to disregard the “settled principle of commercial intercourse of the 
country” exempting from license taxation persons representing owners 
of property in another state and that, therefore, the defendant was not 
liable to the tax (see per Alvey, C. J., pages 59-61). 

Yours very truly, 

Gordon & Smith. 


JOB—E 




CHAPTER XLII. 


WHY WE EMPLOY ADVERTISING SALESMEN. 

When we began making “WEAR-EVER” Aluminum Cooking 
Utensils in 1901, our salesmen called upon many of the best dealers. 
Almost every one said that he had stocked up with other aluminum 
utensils, had been compelled to sacrifice on them, and naturally did not 
care to lose any more money. Our arguments might be all right, but 
what he wanted was a good strong demand from satisfied customers 
before he would consider stocking up again with aluminum utensils. 

We thought of that “good strong demand” for a good long time. 

We considered advertising; but what was the use of talking in 
type to dealers who could not be won by personal presentation of our 
proposition ? And what was the use of advertising to the consumer— 
only to get her to go to stores inquiring for articles which the dealer 
not only would not carry but which he at that time would advise her 
not to purchase ? 

Hence, while our faith in aluminum ware waited for improved 
methods of manufacture and increased volume of business to provide 
a margin of profit which in the day of the return of dealers’ favor might 
be used in conducting an effective advertising campaign, we employed 
college students and other suitable persons as advertising salesmen 
whom we might personally train to teach housewives to use “WEAR- 
EVER” aluminum utensils intelligently. 

OVER 3,000,000 PERSONAL CALLS. 

Assume that during a summer 3,000 of these advertising men are 
in the field, each one making on an average seven calls per day, and 
throughout the year we have on an average 1,000 salesmen. Figuring 
conservatively, these trade producers make at least 3,000,000 personal 
calls during the year, not only on new customers, but also at the homes 


Briefs, Decisions and Opinions. 


155 


of old customers, explaining the merits and uses of “WEAR-EVER” 
Aluminum Utensils. In the summer of 1912, there were 3,063 men at 
work and in 1914 there will be about 3,500 in the field. 

ONE STORE’S EXPERIENCE. 

The Joseph Horne Co. of Pittsburgh attempted to sell our line of 
utensils during 1902-3, and succeeded by some advertising in selling 
from $15.00 to $20.00 worth of goods per week. To increase business 
in Pittsburgh we placed a number of advertising salesmen there, who 
within two years sold more than $13,000.00 worth of goods. A large 
stock of utensils was then placed in the Joseph Horne store and a 
demonstration was conducted. To the surprise of the managers of the 
store and of ourselves, the sale of “WEAR-EVER” utensils averaged 
$99.50 per day for the first two months; at the end of which time the 
Joseph Horne Company conducted the demonstration at their own 
expense for two years more, and their sales of “WEAR-EVER” ware 
are still increasing each year. 

THE PROOF OF THE PUDDING. 

If time and space permitted, similar experiences of other stores, 
even in small towns, might be cited. Stores in Western Pennsylvania 
and Ohio, in which territory are located towns which our advertising 
men have worked practically every year since 1902, are selling more 
goods than are being sold in districts where canvassers have not worked 
so long. We can name towns of only 2,000 inhabitants in which our 
advertising salesmen during the last eight years have sold from $1,500 
to $2,000 worth of goods, and the dealers in these towns are now selling 
more “WEAR-EVER” Aluminum Utensils than are dealers located 
in larger towns in which our advertising salesmen have worked only 
two or three years. 

SATISFACTION IN THE HOME MEANS SALES AT THE STORE. 

We manufacture a number of specialties, several of which are 
patented articles, and which, without special demonstration and effort, 
will not sell readily in stores. The use and care of these utensils, 
bearing the “WEAR-EVER” trade mark, are carefully explained to 
customers by these salesmen, and the customers if satisfied naturally 
go to the stores whenever they are ready to replace utensils that wear 
out with those that “WEAR-EVER.” 




156 


The Aluminum Cooking Utensil Company. 


THE REASON WHY. 

A merchant is satisfied with a percentage of profit less than that 
which an advertising salesman must have in order to justify him in 
engaging in the work. For this reason dealers who carry the regular 
line of “WEAR-EVER” utensils always can sell at lower prices than 
the advertising salesman and yet make a profit as good or better than 
their average margin on other lines. In order, therefore, to keep these 
“trade producers” in the field we must assure them that they will be 
protected in the sale of a few specialties. The fact of greatest signifi¬ 
cance to dealers and to manufacturers is this: Advertising salesmen 
have created and can continue to create a “good strong demand” for 
“WEAR-EVER” Aluminum Utensils. That demand means more 
business for dealers and for us. 






Stevenson & Foster Company 
Printers 

Pittsburgh, Penna. 





























































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